183 Ga. 375 | Ga. | 1936
Mrs. Myrtle Williford brought a peti-. tion in equity against Mrs. Mae B. Swint and E. A. Newsome, seeking to cancel two deeds conveying certain property, one from the petitioner to Newsome, the other from Newsome to Mrs. Swint, on the ground that the deed to Newsome was procured by fraud, and that Mrs. Swint took her deed from'Newsome with actual
The court should charge the jury on the controlling issues in the case, even though not requested to do so. Phenix Ins. Co. v. Hart, 112 Ga. 765 (38 S. E. 67); Mays v. Shields, 117 Ga. 814 (45 S. E. 68).
Is the petitioner, under the pleadings and the evidence, entitled to have the deed from Newsome to Mrs. Swint canceled? It has been held that “The right to disaffirm a voidable contract of an insane person is personal, and can be exercised only by himself, if restored to sanity; or if his infirmity continues till his. death, then by his legal representative or his heirs; but neither the other party to the contract nor third persons can avoid it.” McClure Realty &c. Co. v. Eubanks, 151 Ga. 763 (108 S. E. 204). In McLarty v. Abercrombie, 168 Ga. 742, 746 (149 S. E. 30), it was held that a devisee under a will was a proper party to bring suit for disaffirmance of a voidable deed made by the testator while insane (the administrator refusing to do so), and that the ruling in McClure Realty &c. Co. v. Eubanks, supra, was not in conflict therewith. See also Wynne v. Fisher, 156 Ga. 656 (119 S. E. 605), where it was held that an insane person may sue by another as his next friend, for the purpose of cancelling a voidable deed made by him while insane; and Haddock v. Callahan Grocery Co., 163 Ga. 204 (135 S. E. 747), where it was held that a widow who had accepted a year’s support subject to an outstanding security deed executed by the deceased was not a proper party plaintiff in a suit seeking to disaffirm the deed on the ground of
In view of the above rulings, the pleadings, and the evidence, the judge erred in failing to give in charge the law in tins connection. The charge that the “plaintiff contends that at the time of the execution of this deed by Mr. E. A. Newsome to Mrs. Swint, that he had been adjudged a lunatic and that he was incapable of making a deed,” was not sufficient to cure the error.
The court, whether requested or not, should give to the jury appropriate instructions on every substantial issue of the case presented by the evidence, and a failure to do so is cause for a new trial. Pusser v. Thompson, 147 Ga. 60 (22 S. E. 866). In view of the above ruling, the pleadings, and the evidence, the court erred in failing to give in charge to the jury the principle of law set forth in the Code, § 85-408: “Possession of land is notice of whatever right or title the occupant has.” The petitioner proceeded on the theory of fraud with actual notice, and fraud with constructive notice by reason of possession. Upon failure to prove actual notice she was entitled to prevail if the purchaser, Mrs. Swint, had constructive notice. The court only gave in charge to the jury the principle that upon proof of fraud and knowledge of the fraud on the part of the purchaser the petitioner should prevail, and that upon failure to prove knowledge of the fraud on the part of the purchaser the petitioner should not prevail. The petitioner was therefore in effect denied the right to prevail upon proof of fraud with constructive notice.
Judgment reversed.