Wynne v. Fisher , 156 Ga. 656 ( 1923 )

Hines, J.

(After stating the foregoing facts.)

It is unquestionably true that the deed of an insane person, who has never been adjudged to be insane or of unsound mind, is not absolutely void, but only voidable, and that the right to dis-affirm the deed of an insane grantor 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 grantee nor strangers can avoid it. Bunn v. Postell, 107 Ga. 490 (33 S. E. 707); McClure Realty &c. Co. v. Eubanks, 151 Ga. 763 (108 S. E. 204). These decisions hold, that the right to disaffirm such an instrument is one which the grantor only, or, in case of his death, his legal representative or heirs, .can assert and enforce. They do not decide that the insane grantor can not enforce this right by next friend. Whatever may be the rule elsewhere, it is now well established in this State, that a person of unsound mind, having no legal guardian, may sue in a court of equity by another as his next friend, to cancel his deed made when he was mentally incapable of executing such instrument. Such action is that of the insane grantor acting through his next friend. Civil Code ,(1910), § 5416; Reese v. Reese, 89 Ga. 645 (15 S. E. 846); Dent v. Merriam, 113 Ga. 83 (38 S. E. 334); LaGrange Mills v. Kener, 121 Ga. 429, 434 (49 S. E. 300). In Dent v. Merriam, the precise point involved in this litigation was decided adversely to the defendant. The law declares such an instrument voidable; and where, from his infirmity, the insane grantor on his own motion can not disaffirm and have the instrument set aside and canceled, this can be done by his next friend in a court of equity, whose doors are always open to protect such unfortunate persons and to enforce their rights. So the petition in this case was not demurrable because it was brought by the plaintiff by a next friend.

It is insisted and stressed, that the petition is demurrable because it does not allege that the plaintiff tendered to the defendant the money which he paid her on the purchase-money of the property conveyed to her by this deed which she seeks to cancel. It is sound doctrine, that he who seeks equity must do equity. Civil Code (1910), § 4521. It is also true that in cases of fraud, equity will not cancel a conveyance under which anything has been received, until repayment is made. Miller v. Cotten, 5 Ga. 341 (6); Petty v. B. & W. R. Co., 109 Ga. 666 (5) (35 S. E. 82) ; Bridges v. Barbree, 127 Ga. 679 (4) (56 S. E. 1025); Walker v. Walker, 139 Ga. 547 (7c) (77 S. E. 795); Garner v. Butler, 144 Ga. 441 (87 S. E. 471). Under these authorities the petition for cancellation must allege a tender of, or offer to restore by the plaintiff tq his adversary, anything received under such instrument. Conceding, but not deciding, that this principle is applicable to a ease brought by an insane maker of a deed to have the same canceled on the ground that she was mentally incapable of executing the same, should the petition in this case have been dismissed on demurrer for lack of such allegation ? The petition alleges that the defendant has been in possession, receiving the rents and profits of the premises. Plaintiff prays for an accounting by the defendant therefor; and that the correct amount of his lien on the premises be declared and set up. In .view of these facts, no formal tender of the actual amount which may be due the defendant was necessary; and the petition should not have been dismissed on demurrer on this ground. Mayer v. Waterman, 150 Ga. 613 (104 S. E. 497).

The allegations of the petition as to the mental incapacity of the plaintiff are sufficient to withstand a general demurrer. Plaintiff alleges that, when she executed her deed to the defendant, “ she was not mentally capacitated to do so, her mind and memory being unsound.” The allegation in the amendment to her petition, that “she was aged, infirm, feeble in mind and body, and unable to act for herself prudently and properly,” did not have the effect of changing and weakening the first allegation of her mental incapacity, the same being in effect repeated in this amendment. In this and other respects the petition set forth a cause of action; and the court below erred in dismissing the same upon demurrer.

The defendant made a motion in writing to dismiss the petition, on the ground that the same prayed that the defendant be permanently enjoined and restrained from disposing of the property in controversy, and was filed in the office of the clerk of the superior court without the sanction of the judge. The court overruled this motion, and error is assigned thereon in the cross-bill of exceptions. The plaintiff did not pray for a temporary injunction or other interlocutory relief. This being so, the court below properly overruled the motion to dismiss the petition on this ground. Civil Code (1910), § 5545; Atlanta Real Estate Co. v. Atlanta National Bank, 75 Ga. 40 (4).

Judgment reversed on the main hill of exceptions, and affirmed on the cross-hill.

All the Justices concur.