Partain v. Partain

160 Ga. 634 | Ga. | 1925

Gilbert, J.

The first and second headnotes do not require elaboration.

The facts of this case constitute a pitiful and pathetic story of the woes of an aged couple. The husband is now eighty-three years of age, and the wife over seventy. The husband has a number of grown children by a former wife. The aged couple were married on December 9, 1911'. Shortly thereafter discord arose. The petition in this case alleges, and the aged husband swears, that it was brought about by his own children, actuated by the, alas, too frequently encountered desire to acquire property some part of which might go to the stepmother. It is made plain by undisputed evidence that a proceeding for divorce was instituted by the wife, based upon the ground of cruel treatment. The aged husband filed a counter-plea, alleging cruelty on the part of the aged wife. The suit did not prevail, and subsequently a reconciliation took place between the parties. Pending the divorce suit the father and one of the sons consulted an attorney for the purpose of devising some means by which the property could be legally so placed that the wife would be defeated of alimony. Both the father and the son so testified. After the reconciliation the father and husband, recovering his sense of justice, desired to carry out faithfully a prenuptial contract with the wife, the agreement being established by the testimony of both the husband and wife. The present suit was filed by both parties to that contract, alleging the execution of the deed conveying the farm to the son, and praying that the same be canceled. There was introduced in evidence a deed and a subsequent contract purporting to complete the agreement between the parties. The former was a regular warranty deed. The latter provided that the grantor should receive the rents and profits from the land for the remainder of his life, further providing that if he should die prior to the first day of July no rents would be collectible for that year, that if he died subsequently to July 1st rents after the first of July should be applied to his funeral expenses, doctor’s bills, and the like. The alleged consideration was also unusual. The son executed a number of notes aggregating $11,250, the maturity of which was thirty days after the death of the grantor. At that time interest on the notes began to run, but no interest was to accrue during the grantor’s life. None of these notes were delivered to the father, nor were they made payable to him. They were made payable to and were delivered to the several children, thus administering upon the estate of the old man before his death. The son graciously permitted him to receive the rents and profits of his own land; but there was a proviso that all expenses and taxes were first to be deducted, and that the aged father should receive his rents and profits only if the rents exceeded taxes and debts incurred in the making of the same. It seems to us that a serious injustice has been done, which this court and the trial court are powerless to remedy. The case, as to the husband, was nonsuited on the trial, because he had entered into the scheme at a time when 'ill feeling toward his wife made him willing to sacrifice his property rather than that any part of it should support the aged wife whojm he had so recently pledged himself to protect and support. Under the evidence the wife could not recover, although the husband was eager to carry out his contract with her, because the property out of which he had agreed that she should have a home after his death had been conveyed to his son and was beyond his control. Under the law we have no discretion, as we view the case, but to affirm the judgment.

Judgment affirmed.

All the Justices concur, except Russell, 0. J.j disqualified^