1. One of the grounds of the motion for a new trial is, that, after charging the jury as follows: “Great inadequacy in price, joined with great disparity of mental ability in the contracting of a bargain, may justify equity in setting aside a contract,” the court'committed error in immediately adding thereto the following, “provided the jury from such facts and all of the proven facts in the case conclude there was fraud practiced by wrong and undue influence on the maker of the deed by the gran-*249lee, thereby causing him to do what does not express his real wish, but the wish of the grantee.” Civil Code, §4033, provides: “Great inadequacy of consideration, joined with great disparity of mental ability in contracting a bargain, may justify a court of equity in setting aside a sale or other contract.” The judge gave to the jury a charge in substance in the language employed in this section; and we think he erred in qualifying this part of the charge in his instructions to the jury, that although there was great inadequacy in the price and great disparity of mental ability in the contracting parties, the jury could not set aside the contract unless there was “fraud practiced by wrong and undue influence on the maker of the deed by the grantee, thereby causing him to do what does not express his real wish, but the wish of the grantee.” Under the section above quoted, the jury had a right, in this equitable proceeding, to set aside the deed if they believed there was “great inadequacy of consideration, joined with great disparity of mental ability” in making the contract, without proof of anything else. The pleading and the evidence made it proper for the judge to give in charge to the jury the provisions of the code section above quoted; and it was error, requiring a new trial, for the judge, in giving such provisions in charge, to .qualify them in the manner complained of.
2.The plaintiff further complains that the court committed error in the following charge: “The real issue involved in this case is whether or not at the time of the execution of the deed the party had mental capacity sufficient to make the deed.” Error was assigned on this charge, because it withdrew from the jury the consideration of the issue-raised by the amendment to the petition. In another, ground of the motion for a new trial complaint is made of the following charge: “You can consider the reasonableness or the unreasonableness of the transaction solely upon the idea of ascertaining whether or not the party had mental capacity to make the deed.” The plaintiff contends that this charge was error, because it restricted the jury, in their consideration of the reasonableness or unreasonableness of the transaction, to the question as to whether or not Charles A. Eye had mental capacity to make the deed, whereas the jury had a right to consider the reasonableness or unreasonableness of the transaction on other issues in the case. We think that each of the charges complained of was error, in *250view of the pleadings and the evidence. The issue made by the pleadings and the evidence was not solely whether or not Charles A. Pye was non compos mentis. The evidence and the pleadings made issues in the case other than the one involving the question as to whether or not Charles A. Pye had “mental capacity to make a deed.” One issue other than the one regarding the mental capacity of Charles Pye to make the deed was the one referred to in the preceding division of this opinion, concerning the inadequacy of consideration and the disparity of mental ability. If there was great inadequacy of consideration in the contract and great disparity of mental ability between the grantor and the grantee, the jury were authorized, under the pleadings and the evidence, to set aside the deed, even if Charles A. Pye did have mental capacity to make it. We think the above-quoted charges were error.
3. Complaint is made that the judge committed error in failing to define and explain to the jury the meaning of the words “fraud” and “undue influence,” as used by him in his charge. As there was no request for such explanation to be given, the complaint is without merit. Pickens v. State, 132 Ga. 46 (63 S. E. 783). The other charges complained of were not subject to any of the criticisms made in the assignments of error thereon.
Judgment reversed.
All the Justices concur.
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