Autry v. Parrish , 164 Ga. 650 ( 1927 )

Bussell, O. J.

The excerpt from the charge to which exception is taken in the first special ground of the motion for a new trial was not erroneous for any reason assigned. The statement that “Likewise, the fairness and-good faith and conduct of the defendant should have no weight or bearing with you,” when considered in connection with its context, was a proper instruction, and gave the plaintiff no cause for complaint. The main issue in the case was the mental capacity of C. C. Parrish to execute the deed- in question. Immediately preceding the charge complained of, the trial judge instructed the jury as to the effect of mental incapacity of the grantor upon the validity of the alleged deed, and he proceeded to state that the grantee’s knowledge or lack of knowledge of the mental incapacity of the grantor, or whether the same could have been discovered by one dealing with such insane person, would have no effect upon the validity of the deed and would not make it binding. Immediately following the judge gave in charge the excerpt of which complaint is made. The plaintiff can not complain of this instruction. Where a conveyance is attacked on the ground of mental incapacity of the maker, the grantee therein can not defend upon the ground that his conduct in dealing with such person was fair and that he acted in good faith in the transaction. Warren v. Federal Land Bank, 157 Ga. 464 (3), 468 (122 S. E. 40), and cit.; Joiner v. Southern Land Sales Corporation, 158 Ga. 752 (5) (124 S. E. 518). This was the proposition upon which the judge was instructing the jury, and under the circumstances we do not think that the jury could have understood from the charge complained of that the judge was removing from their consideration the question of whether the defendant fraudulently induced C. C. Parrish to execute the deed in question.

The second special ground of the motion is an amplification of the general ground that the verdict was contrary to law and the evidence, it being insisted that the evidence failed to show delivery of the deed in question. An examination of the brief of evidence discloses that the movant is in error in asserting that the evidence shows no delivery of the deed. The defendant testified, without objection: “He [C. C. Parrish] called me out there. cNow, Joe [his wife, Mrs. Parrish],’ he said, £I am going to make a deed to the home place to you, I want you to make Chuck and Cecil equal in half you get,’ and he went off and brought the deed back and give it to me. This deed is here that has been accepted is the deed he give me.” There was further evidence from which a delivery of the deed could have been inferred. Many witnesses in behalf of the defendant testified that Mr. Parrish told them that he had made a deed and given his wife the home place; and though the deed was not'recorded until after the death of the grantor, there was evidence which ’would have authorized the jury ■ to find that Mrs. Parrish, the grantee, had sent the deed to a friend prior to the death of Mr. Parrish, and requested that he have the deed recorded.

It will be noted that the charge set forth in the third special ground of the motion is assigned as error only because the same was not authorized by the pleadings or evidence, and because the deed recites a consideration of $5000 and the evidence discloses no consideration was paid. In paragraph six of the petition it was alleged that the “pretended warranty deed . . is and was a voluntary conveyance made without consideration,” and in paragraph seven it is alleged that “although said deed . . recites a consideration of $5000 in hand paid, yet there was not one cent paid as consideration, . . and the defendant . . has never paid . . one cent or any other sum or thing of value as a consideration.” In her answer the defendant denied the allegations of paragraph six and paragraph seven. Thus arose the issue as to the consideration, so far as the pleadings were concerned. At the trial it was admitted that no monetary consideration was paid. The judge had instructed the jury upon the theory that the alleged deed constituted a contract, and had charged that one of the essentials of a valid contract was “a consideration moving to the contract.” Though the deed recited a consideration of $5000, the testimony in behalf of tire defendant, which was uncontradicted, showed that this amount was inserted as the consideration because the grantor directed the scrivener who drew the same to copy a prior conveyance by which the grantor received title to the property, in which conveyance a consideration of $5000 was expressed. It was conceded by the defendant that no monetary consideration was paid. However, she introduced much testimony tending to prove that the conveyance was in fact the evidence of a gift.to her from her husband; and a deed of gift from husband to wife could not be set aside upon the single ground of want of consideration, for the deed would be good whether there was any money consideration or not, in the absence of other objections. Dunn v. Evans, 139 Ga. 741 (2) (78 S. E. 122). As against the objections urged, it was not error to charge that “love and affection is a consideration.”

An examination of the brief of evidence shows that the evidence was sufficient to authorize the verdict returned by the jury, finding the deed to be a valid conveyance.- The plaintiff introduced much testimony tending to show the mental incapacity of C-. C. Parrish to execute the deed in question. On the other hand, witnesses introduced in behalf of the defendant were equally positive in testifying that Parrish was of sound mind and possessed of ample mental capacity to execute the instrument. In this conflict of the evidence it was the function of the jury to find the truth as to this material issue; and they having found in favor of the validity of the conveyance, and the trial judge having approved their verdict, this court will not interfere.

Judgment affirmed.

All the Justices concur.