Hall v. Tyson , 1925 Ga. LEXIS 165 ( 1925 )

Bussell, 0. J.

W. C. Tyson brought a petition against Mrs. Willie Lucile Hall. The petitioner is the father and the defendant is his daughter. It is alleged in the petition that the plaintiff owned a tract of land in Effingham County, near where he has lived for many years; that his daughter, together with her husband and children, moved into the home of petitioner for the purpose of making it their home and rendering petitioner and his wife such services as they might need at times when it was necessary on account of their age and feeble condition; that thereafter the daughter proposed to her father that if he would make her a deed to a tract of land described in the petition, which adjoins the home of petitioner, containing one hundred acres, more or less, she and her husband would settle on it where she could and would render petitioner and her mother, during the remainder of their lives, such services as they might need when sick or unable to care for themselves, and would be a neighbor and companion to them and would comfort them in any way possible; that, having implicit confidence in the defendant’s word and believing that she and her husband would carry out in perfect good faith her promise to him, petitioner on the 30th day of January, 1920, made the defendant a deed to the land above referred to; that as soon as petitioner made and delivered said deed to defendant, she and her husband moved away from the home of petitioner, and failed and refused to settle upon the land conveyed to her or to perform any of the services agreed by her to be rendered to petitioner and his wife, which was the consideration of the deed made by petitioner' to the defendant; that while the deed made by petitioner recites a money consideration of five dollars, no money was in fact ever paid, and petitioner has received no consideration whatever for said land, which is worth $1,000 or more in cash; that the services to be rendered by the de-" fendant to petitioner and his wife in their old age would have been of great value and comfort, and this was the sole consideration that moved petitioner to make the deed to his daughter; that the defendant took an unconscionable advantage of his faithful trust-and confidence emanating from his relationship, for the purpose of getting a title to said land without any consideration whatever; that defendant is insolvent; that she has no property so far as petitioner knows, and is unable to respond in damages to petitioner in the event a judgment in damages should be rendered against her; that petitioner has no adequate remedy at law, and can only be protected by a court of equity; that he would suffer irreparable loss in the event said defendant should sell, encumber, or otherwise dispose of said property to an innocent purchaser. The prayers were, that the deed be so reformed as to make it show the true consideration and the contract made at the time of its execution, that the contract of sale be rescinded, and that said deed be canceled as a cloud upon petitioner’s title.

The defendant demurred upon the ground that the petition set out no cause of action and no facts which would entitle plaintiff to the equitable relief sought; that the prayer for cancellation is based upon the declaration of the grantor against the grantee after possession, and is not a legal basis of suit; that the allegations of the petition set forth a sufficient consideration to make the conveyance valid, and the sole basis of action rests upon an effort by the plaintiff to alter the consideration of a deed by the introduction of parol testimony to change the terms of a written contract. Other demurrers were based upon the grounds that the allegations of the petition necessary for the relief sought in the first prayer are insufficient; and that the second prayer should not be granted because the plaintiff has an adequate remedy at law. The demurrers were overruled, and the defendant excepted to this ruling, and to the refusal of a new trial. In addition to the general grounds of the motion for new trial, the plaintiff in error assigned error upon two charges of the court:

“I charge you, gentlemen of the jury, that the old age of the plaintiff has nothing to do with the case at all. The question for your consideration is, first, was the consideration' of the deed carried out; was it complied with? If it was not, why then the plaintiff would be entitled to recover.” This is alleged to be erroneous in that (a) it led the jury to believe that the only question for their determination was whether the consideration was carried out, which was distinctly and clearly prejudicial to the defendant, for she alleges in her defense that there was no consideration to be carried out; that the real consideration was $5 and the natural love and affection of the grantor which was stipulated in the deed. (&) Because it intimated to the jury that there was something in the consideration that needed to be complied with, when in reality the consideration in the deed was love and affection, (c) The charge was erroneous, for the plaintiff’s remedy was an action at law for damages. The jury could have inferred from this instruction that if the $5 had not been paid, they should cancel this deed.

The court charged the jury: “The defendant contends that she understood from her father, at the time they moved there, that they were to have the greater portion of the home place; she contends they were to have the cleared land, the house, and live in the same house with her father’s family for them, and take care of them during their old age.” This instruction is assigned as error because it was a misstatement of the defendant’s contention, it being insisted that her contention was that it was her understanding when she moved there that he would convey to her his house, but not that she was to live there in consideration of this. The headnotes state our rulings on the exceptions.

Judgment affirmed.

All the Justices concur, except Gilbert, J., absent for providential cause, and