7 S.E.2d 76 | Ga. | 1940
1. An absolute deed made in consideration of a promise by the grantee to support the grantor for life may be canceled by the superior court in the exercise of its equitable powers (English v. Little,
2. In canceling the deed the court must, as nearly as possible, restore the parties to their original status. The grantor is chargeable with any money paid and for the value of services rendered under the contract by the grantee. The grantee is to be charged with the damages occasioned by his breach, and a fair rental value of the land during the time it was held in possession under the agreement. Lytle v. Scottish American Mortgage Co.,
3. It follows from what is said above that the allegations of the petition as to the value of the use of the property, the value of timber cut from the property and sold by the grantee, and the value of services rendered *706 by the grantee under the contract, were not subject to demurrer as irrelevant and immaterial to the cause of action declared on.
4. The allegations attacked by grounds 2 and 4 of the demurrer were not subject to the objection that they were irrelevant and immaterial. While these allegations did not set forth issuable facts essential to the cause of action declared on, and therefore need not have been made, it was not improper to do so, since the matters set out were not entirely disconnected from and unrelated to the principal and controlling issues.
5. An allegation that the defendant is insolvent is an allegation of an ultimate fact, and not a conclusion of the pleader, and accordingly is not subject to demurrer on that ground. H. C.
W. B. Reynolds Co. v. Reynolds,
6. The theory underlying the rule that equity will intervene to cancel a deed made in consideration of a promise by the grantee to support the grantor for life, where the grantee breaches the covenant and is insolvent, is that by reason of the insolvency of the grantee a judgment for damages would not in the usual course of events be collectible, and accordingly would be inadequate to compensate the grantor or place him in statu quo. Harrell v. Parker,
7. Under the principles stated first above; the following charge to the jury was erroneous: "I charge you that in every case of a conveyance, that where there is a breach of the covenants of the contract [this] will authorize a decree of cancellation of the deed, although the instrument contains no condition upon which the happening of an event is determined" (upon the happening of which the estate is to determine). In view of the fact that a new trial is granted for an error in the charge as stated above, we need not determine whether the above charge would have been reversible error, when considered in connection with other portions of the charge in reference to the issue of insolvency.
8. The third special ground of the motion for new trial is expressly abandoned. *707 The fourth ground is not argued in the brief, and may be treated as abandoned.
Judgment reversed. All the Justices concur.