Houston v. Horton

1. There was no merit in the assignments of error made on the charge of the court in regard to fraud.

2. The attack made on the charge concerning undue influence and fraud was without merit.

3. The evidence, while conflicting on all points, supported the verdict of the jury, finding that the deed in question should be set aside.

No. 15811. MAY 23, 1947. Leila Horton filed an equitable petition against John L. Houston, alleging substantially the following: Emma Houston, mother of the plaintiff and of the defendant, died intestate on September 16, 1944, owing no debts, and was the owner of described real estate in Carroll County. Six persons whose names are set out in the petition are the children of Emma Houston, and eight named persons are her grandchildren. These constitute all of her heirs at law. The plaintiff is entitled to a one-seventh interest in the estate of her mother. There has never been any administration upon the estate.

In order to defeat the rights of the plaintiff and other heirs at law of Emma Houston, and to defraud them of rents and profits from the real estate described, the defendant had his mother to execute, on June 3, 1944, what purported to be a deed from her to the defendant, conveying to him a life estate in the land described, the property at his death to go to the heirs of Emma Houston. The deed has been recorded.

The plaintiff contends that the deed is voidable for the following reasons: It was not based upon any consideration. The execution of the deed was fraudulently procured by the defendant. At the time Emma Houston signed the deed by her mark, she was 84 years old, and was continuously from the time of so signing to the date of her death wholly incapable of transacting business matters, and not possessed of sufficient mental capability to make a voluntary disposition of her property. Taking advantage of the condition of his mother, and the special confidence that she reposed in him, the defendant unduly influenced his mother in the making and signing of the deed by: (1) having the deed prepared according to his directions out of the presence of his mother; and (2) repeatedly and persistently urging her to sign the deed and fraudulently assuring her that it was just like she wanted it. And the consideration expressed in the deed ($5 and other valuable consideration) is grossly inadequate, the fair market value of the real estate being $5000.

The plaintiff contends that the purported deed by her mother to the defendant is a cloud upon her interest and title to the real estate, and upon the title of the other named heirs. The real estate has four dwelling houses upon it, which can be rented for $60 per month. Since the death of Emma Houston, the defendant has gone into possession of the property and is collecting the rents therefrom, and will continue to do so as long as he lives, unless he is restrained by the court from so doing and is required to deliver the deed to the court to be canceled as a cloud upon the plaintiff's title to her interest in the land. The defendant is insolvent and the heirs of Emma Houston have no adequate remedy at law to collect the rents or to evict the defendant, unless a court of equity intervenes and appoints a receiver to take charge of the premises. The plaintiff brings the suit to recover her part of her mother's real estate conveyed in the purported deed to the defendant.

The prayers of the petition were: for process; that the defendant be restrained from selling or encumbering the life estate in the real estate conveyed to him; that the deed to the defendant be canceled as a cloud upon the plaintiff's title; that the title to the real estate be decreed to be in the plaintiff and other heirs at law of Emma Houston; and for other relief.

The defendant in his answer stated that, prior to the execution of the deed in question, his mother had sent for him to come to her home, and when he went there she told him that she wanted to convey the property to him as long as he lived. He had a deed prepared in accordance with her wishes, and at the time of the execution of the deed she was in sound mind and fully capable of conveying the property. The allegations of fraud in the petition were denied.

On the trial of the case, the plaintiff testified that her mother was in poor health for some time before she died, her mental condition was poor, at times she would not even know her children, and from the plaintiff's observation, her mother did not have sufficient mental capacity to make a deed.

J. P. Richards testified that he had witnessed the deed in question, signed by Emma Houston by her mark, and further that: He asked Mr. Simpkins, the other witness, to read the deed to Emma Houston. After Mr. Simpkins read the deed, the defendant said, "That's just like Mamma wants it, she wants all of them to share just alike." Emma Houston said, "Yes, I want all of them to share alike." The witness told her that, if she signed the deed as written, the property would go to the defendant. The defendant said, "That is the way Mamma wants them all to have just alike." The witness protested that under the deed they would not have it that way, and every time he explained the deed, the defendant would repeat, "That's just the way Mamma wants it, she wants all the children to share just alike." And she would say, "Yes, I want all of them to share just alike." The witness finally told the defendant, "I will sign it but it's no good, and she don't know what she is doing." The witness did not think that Emma Houston knew what she was doing when she signed the deed.

J. D. Simpkins testified that he witnessed the deed, and related substantially the same conversation that Richards had related. The witness stated that, from his observation of Emma Houston on the day she executed the deed, he would say that she was not capable of executing a deed.

O. W. Roberts Jr., an attorney, testified that the defendant came to his office and asked that he prepare the deed in question. Emma Houston was not with him.

The defendant introduced W. T. Richards, who had made a deed to Emma Houston for the property in dispute, and he testified that in his dealings with Emma Houston her mind seemed to be all right. He did not know her condition on the date when the deed was signed.

Dr. S. D. Thomas, a practicing physician, testified that he had treated Emma Houston, having seen her last on July 28, 1944, and the condition of her mind at that time was good.

Ed Ward, a brother of the plaintiff, and son of Emma Houston, testified that the condition of his mother's mind was all right during the summer of 1944. The witness stated that he had heard his mother say that she would like for the defendant to look after her property until her grandchildren who lived with her were grown, and she wanted him to have it as long as he lived to look after it.

M. V. O'Neal, a preacher, testified that he had visited Emma Houston on occasions until her death, and he did not ever see anything to indicate that anything was wrong with her mind.

Roberta Towns, a granddaughter of Emma Houston, testified that she had heard her grandmother say that she wanted the defendant to control her property while he lived, and that her grandmother's mind was perfectly all right. Other grandchildren testified to the same effect.

The defendant testified that: He visited his mother often, and there was never anything the matter with her mind until she died. His mother had sent for him in regard to having the deed prepared, and told him that she wanted him to have the property during his life so that he could take care of the grandchildren who lived with her. He had the deed prepared and obtained the witnesses. He never tried to influence his mother in any way. He denied that his mother had made the statements in regard to wanting her children to share alike, but insisted that she said that the deed was exactly like she wanted it. He denied the statements which the witnesses to the deed testified that he had made.

The plaintiff, in rebuttal, introduced the testimony of two sons of Emma Houston, who testified that their mother's mental condition was bad for several months before she died, and that at times their mother would not know them.

It is stated in the charge of the court that by consent of counsel the verdict of the jury was to be made by answering certain questions as follows: (1) Should the deed executed by Emma Houston to John L. Houston be set aside upon the ground of the mental incapacity of the grantor, Emma Houston? (2) Should the deed be set aside on the ground of undue influence, as alleged in the petition? (3) Should the deed be set aside on the ground of fraud? The jury answered each of these questions in the affirmative, and the court entered a verdict for the plaintiff.

The defendant presented to the court a motion for new trial on the usual general grounds, which was later amended by the addition of two special grounds. The exception is to the overruling of the motion for new trial, as amended. 1. Special ground 1 of the amended motion for new trial complains that the court erred in charging the jury in certain language. The language set out contains almost the entire portion of the charge of the court in regard to fraud. The reasons assigned that the charge was erroneous were: that there was no evidence to authorize a charge on fraud; that the charge was especially harmful and injurious, in that the court instructed the jury that "fraud may exist from misrepresentation by either party, made with design to deceive, or which does actually deceive the other party, and in the latter case such misrepresentation renders the sale voidable at the election of the other party, though the party making it was not aware that his statement was false;" that fraud would have to consist of an intent to defraud and deceive by the party making the statement, and he would have to have knowledge of the falseness of the statement, which would have to be alleged and proved; that, if the deceased, Emma Houston, was insane at the time of the execution of the deed, no fraud could have been perpetrated upon her, the jury having found that she was insane and incapable of making a contract; that fraud is a personal defense or plea, and would have to be made by the person alleged to have been deceived individually; and that the charge had no application to the facts in the case, and was misleading, confusing, and injurious to the plaintiff in error.

It is unnecessary to decide in this case whether or not the evidence would authorize a charge on fraud, since the record shows that the court in his charge instructed the jury that by consent of counsel the case would be submitted to them on three issues, as to whether the deed should be set aside because of (1) mental incapacity of the grantor, (2) undue influence, and (3) fraud. No objection is shown to have been made to this procedure, and we must presume that counsel for the plaintiff in error agreed that the case should be submitted to the jury on these three issues. Manifestly, the trial court must charge on the issues of the case, and it was not erroneous to charge on fraud.

The objection to that portion of the charge quoted above, on the contention that fraud must consist of an intent to deceive, and that the party making the statement must have knowledge of the falseness of the statement, is without merit. The Code, § 37-703, provides as follows: "Misrepresentation of a material fact, made wilfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake andinnocently, and acted on by the opposite party, constitutes legalfraud." (Italics ours.)

The objection that, if the deceased was insane, the defendant could not have been guilty of fraud, is a contention that the jury returned an inconsistent verdict. This contention is not a proper objection to the charge on fraud.

The contention that fraud is a personal defense or plea, and could be made only by the party deceived, is without merit.Eagan v. Conway, 115 Ga. 130 (3) (41 S.E. 493).

The final objection, that the charge was inapplicable, misleading, confusing, and injurious to the plaintiff in error, is without merit. Veal v. Barber, 197 Ga. 555 (30 S.E.2d 252).

2. Special ground 2 contends that the court erred in giving that portion of the charge which dealt with undue influence, and the portion where, in summing up the case, the court instructed the jury that, if they found that a preponderance of the evidence showed that the deed was obtained by reason of mental incapacity of the grantor, undue influence, or fraud, the deed should be set aside.

No attack is made on the instruction as being an incorrect statement of law, but the contention is made that it was harmful and prejudicial to him because: there was no evidence to authorize the charge, no evidence that undue influence was used, no evidence that fraud was perpetrated, and no evidence that the deceased acted upon any false representations made by the defendant.

Since the issues of fraud and undue influence were submitted to the jury by consent of counsel, as shown in the previous division, the court did not err in charging on these principles of law.

Judgment affirmed. All the Justices concur.