Toney v. Toney , 196 Ga. 666 ( 1943 )

1. Although the overruling of a general demurrer to a petition, without any exception to the judgment, establishes the law of the case, the plaintiff is not relieved by such a judgment from proving his case substantially as laid in the petition. Especially is this true, if there be anything in the petition that is valid, where the judgment itself does not hold that all the averments of the petition are good, but, as in the instant case, without holding what averments are good, merely states that a general demurrer to such a petition should be overruled. See, in this connection, Burroughs v. Reed, 150 Ga. 724 (105 S.E. 290); Phinizy v. Phinizy, 154 Ga. 199 (2-a), 211 (114 S.E. 185); Bailey v. Ga. Fla. Ry., 144 Ga. 139 (2) (86 S.E. 236); Benson v. Andrews, 149 Ga. 758 (1-3) (102 S.E. 148).

2. Where one who can read signs an instrument without apprising himself of the contents, and there is no relation of trust and confidence between the parties, he cannot attack the instrument merely on the ground that he was ignorant of its nature and effect, unless he shows that some emergency existed such as would excuse his failure to read the paper, or that his failure to read was caused by some misleading artifice or device perpetrated by the opposite party, amounting to actual fraud such as to reasonably prevent a reading of the paper. Morrison v. Roberts, 195 Ga. 45 (23 S.E.2d 164), and cit.; Lewis v. Foy, 189 Ga. 596 (6 S.E.2d 788); Hancock v. Gunter, 195 Ga. 646, 651 (24 S.E.2d 772), and cit. Accordingly, in so far as the instant petition sought to cancel a deed from the plaintiffs to the defendant, the execution of which was undisputed, because of ignorance of its contents and the general charge of "fraud," the court did not err in directing a verdict against the plaintiffs as to relief on that ground, where there was no evidence of any fraud to mislead the plaintiffs and prevent them from reading the deed before its execution.

3. A deed that recites on its face a consideration of $10 "and other valuable consideration in hand paid" at the time of its execution is not a voluntary conveyance, but presumptively is valid as based on an actual valuable consideration. Thus, on a petition by the grantors for cancellation and other equitable relief, attacking such a deed as without consideration, while an inquiry into the actual consideration is not precluded, the burden is on the grantors to show that none in fact existed. See Nathans v. Arkwright, 66 Ga. 179 (1-a); Pierce v. Bemis, 120 Ga. 536 (48 S.E. 128); Martin v. White, 115 Ga. 866, 868 (42 S.E. 279); Glenn v. Tankersley, 187 Ga. 129 (4) (200 S.E. 709); Lifsey v. Mims, 193 Ga. 780 (4) (20 S.E.2d 32); Hall v. Calhoun, 140 Ga. 611 (2) (79 S.E. 533).

(a) Decisions holding that a recital of consideration, made in a deed, is not competent evidence of its payment, and that the burden is on the party claiming a valid consideration, were not suits between the parties to the instrument, as in the instant case, where the grantor or one in privity with him sought relief against the instrument or some right thereunder, but were cases involving the rights of a plaintiff in fi. fa. in a claim case, or the rights of an alleged bona fide purchaser on whom fell the duty of proving positively that he had paid value for the property. See Beam v. Rome Hardware Co., 184 Ga. 272 (191 S.E. 126), and cit.; Pound v. Faulkner, 193 Ga. 413 (4), 418 (18 S.E.2d 749), and cit.; Louisville Nashville R. Co. v. Ramsay, 134 Ga. 107 (2), 111 (67 S.E. 652).

(b) Since the plaintiff grantors in this case, seeking relief against the deed, failed to negative by positive proof the receipt of any valuable consideration from the defendant grantee, as presumptively shown by the recital in the instrument and indicated by the defendant's testimony, and the attack on the deed as without consideration failed, the court did not err, on this ground, in directing the verdict against the plaintiffs as to the lot of land involved in the deed.

4. Nor did the court err in directing the verdict against the plaintiffs as to a second lot of land, their interest in which, as heirs of their deceased mother, they sought to recover from her husband, the stepfather of the plaintiffs, since under the undisputed testimony the title to this lot, before its sale for taxes and a tax deed held by a third person, was in the defendant husband; and since, under the undisputed evidence, the money paid by the deceased wife in redeeming the property from taxes and taking a deed in her name belonged to the husband, and there was no gift of the money or property to her, so that an implied or resulting trust thus arose in favor of the defendant husband.

5. In the general grounds of the plaintiffs' motion for new trial they attacked, as without supporting evidence, the special finding of the jury in this equity case that there was no partnership in a produce business between the defendant husband and his deceased wife, the plaintiff's mother, whose interest they sought to recover as heirs; and they attacked the special finding of the jury that there had been a settlement between the parties, in which the plaintiffs relinquished their rights in their mother's jewelry. However, as to the issues covered by these grounds, the evidence, though conflicting, authorized the findings.

Judgment affirmed. All the Justicesconcur.

No. 14640. OCTOBER 7, 1943. The son and daughter of a deceased wife by her first husband brought an equitable petition against her second husband, the plaintiffs' stepfather. The petition stated, that, as the only children of the decedent, they with the second husband were all of her heirs; that the plaintiffs were entitled to two-thirds of her real estate and personality; that these properties consisted of two described city lots, certain jewelry, and the interest of the decedent as alleged partner with the defendant husband in a produce business. As to the first lot, they alleged that although they might have signed a deed thereto to the defendant, such deed was obtained by "fraud," the nature of which was not stated; and that they never received any consideration for such deed. They prayed that this deed be canceled and declared void, and that title in such lot to the extent of their two-thirds interest as heirs of the decedent be decreed in them. As to the second lot, they alleged that the paper title was in the mother, without any deed from her, and therefore they were entitled to their interest therein as heirs. They prayed for a partition of the properties between them and the defendant husband as to their two-thirds and his one-third interest; and prayed for an accounting as to the partnership assets, and for other equitable relief.

The defendant husband demurred generally to the petition as setting forth no cause of action or ground for appointment of a receiver or for other equitable relief; as seeking to vary the terms of the deed between the parties by parol; as failing to allege any payment or tender back to the defendant of the amounts received by the plaintiffs from him in the transactions complained of; and as failing to offer to do equity. The order overruling this demurrer on all grounds recited these grounds, and, without holding what particular parts of the petition were good or bad, stated that if "there be anything in the petition that is valid, the general demurrer should be overruled." There was no exception to this judgment.

In his answer the defendant husband denied the essential averments of the petition. As to the first city lot, he set up that the plaintiffs, as children of his deceased wife, had executed to him a valid deed conveying their interest as such heirs: and that, for a valuable consideration, this deed was executed as part of a settlement of the decedent's estate, in which the plaintiffs had relinquished all claims to her estate. As to the second lot, he set up, that although the wife had taken title in her name from a third party holding a tax deed thereon by paying the amount due for taxes, yet the defendant was the previous owner of the paper title; that the money paid by the wife for the taxes as the consideration for the deed belonged to the husband; that the wife afterward recognized his ownership; and that an implied or resulting trust had arisen in his favor. He further denied that any partnership in the produce business had existed between him and the wife.

At the trial it appeared from undisputed evidence that when the deed to the first-mentioned lot was signed, a settlement was contemporaneously made of two damage suits against a third person, on account of the death of the wife from an automobile collision. One suit had been brought by the husband, to recover large medical expenses paid by him for treatment of the wife's injuries; and another suit had been brought by the son, for damages including injury to his automobile. Under the settlement of these suits, and by mutual understanding between the defendant husband, the plaintiff son, and the plaintiff daughter, the husband received a certain amount, the son a certain amount; and the daughter, without having filed any suit, received $500, and the defendant relinquished any right in that amount. While the plaintiffs testified that when the deed was signed contemporaneously with this settlement they thought they were only signing a release to the party sued in the damage cases, and that they did not realize that they were making a deed to the defendant husband, as delivered to him and recorded, they admitted their signatures on the instrument; and by the undisputed testimony of the subscribing witnesses, and others present, this deed was signed freely and voluntarily by the plaintiff grantors. There was no proof of any fraud to support such general averment in the petition. As to the consideration of this warranty deed in evidence, the instrument recited that it was executed "for and in consideration of the sum of $10 and other valuable consideration in hand paid, . . the interest herein conveyed being such as we would have received as children of and heirs at law of [the] deceased." As to the $500 received by the daughter in the settlement of the damage cases, to which she was not a party in the suits filed by the husband and the son, there was no testimony in contradiction of that of the husband, that this represented the amount paid for the death of the wife, and that he relinquished his claim to one-third of that amount. As to the second lot, the testimony sustained the essential averments of the husband in his answer, that the record title had been in his name, and that the wife in taking title in her name had done so without authority from him and had used his money. As to any jewelry and as to other properties of the decedent, the defendant testified (although this was contradicted by the plaintiffs), that when the damage suits were settled and the plaintiffs executed their deed to him to the lot first mentioned, the plaintiffs had also executed a written settlement, relinquishing all their rights in the decedent's estate; that this writing had been placed by the defendant in his safe, and had disappeared; and that only the defendant and the plaintiff son had access to this safe. The defendant testified that no partnership in the produce business existed between him and the wife, although there was evidence contradicting this.

As to the relief sought with regard to both of the lots mentioned, the judge directed a verdict for the defendant husband. He submitted to the jury for their determination two special issues: as to whether the parties had made a settlement of the estate, so as to exclude the plaintiff heirs from any interest in the decedent's jewelry; and as to whether a partnership had existed between the defendant and the wife. The jury found in favor of the defendant on both issues.

In their motion for new trial the plaintiffs excepted, on the general grounds, to both special findings. To the direction of the verdict against them as to the real estate they excepted on the grounds that such direction was error, in that the general demurrer to their petition had been overruled without exception, and they had proved every averment; and that there were such issues of fact as would have authorized the jury to find a different verdict with regard to the land.