Opinion
17344.
FEBRUARY 14, 1951.
Equitable petition. Before Judge Gower. Worth Superior Court. October 24, 1950.
Jesse T. Edwards, for plaintiff.
Robert B. Williamson, for defendant.
Where, as here, the petition, seeking cancellation of a deed, alleges that the petitioner executed the same against her will and solely because of threats of bodily harm made under circumstances where there was an apparent intention and ability to execute such threats — which were to throw her in a river if she refused to deliver the deed — a cause of action is alleged; and it was error to sustain a general demurrer and dismiss the petition.
No. 17344. FEBRUARY 14, 1951.
Mrs. Bulah Calhoun sued Willard Dowdy, seeking the cancellation of a deed executed by the petitioner to the defendant on December 13, 1949. The deed retained a life estate in the grantor, and for a recited consideration of love and affection conveyed the remainder interest in the described 33.7-acre tract of land in Lowndes County to the defendant. It was alleged in the petition: The defendant is the son of the petitioner's sister, Mrs. Ola Lee Dowdy Myers, with whom he was living at the time. The petitioner's husband had died leaving the petitioner to live alone. She had lived for a time with another sister in Florida but, for a number of weeks prior to and at the time the deed in question was executed, she had been living in the home of the defendant's mother and her husband, Jessie Myers. While in the house on the evening before the deed was executed, the defendant's mother asked the defendant if his Aunt Bulah didn't promise to make him a deed to the place, to which question he replied in the affirmative. The petitioner denied that she had made such a promise; and thereupon the defendant's mother said there was a way to make her do it whether she wanted to or not, and the defendant answered that there certainly was a way, and that she had better do it. The petitioner went to bed, but was unable to sleep that night for fear of bodily harm by the defendant. The next morning the defendant's mother told the defendant, "We are going to take Bulah to Valdosta and make her make you that deed." The defendant replied that she had better make the deed or she would wish she had done so, and then, turning to his mother and Jessie Myers, stated that he was going to work, but for them to take his aunt to Valdosta in the truck and see to it that she made the deed conveying the land to him. The petitioner replied that she was not going to do it, and the defendant said she would do it today or she would wish she had. Thereupon, the defendant's mother told her husband to drive the truck and directed the petitioner to get in the truck. While in route Jessie asked the petitioner if she was going to make that deed to Willard when they got to town, to which she replied in the negative. He then said that, if she didn't promise to make the deed before they got to the river, they would throw her into the river and this would be the last time that anybody would see her alive. Induced by such threats, the petitioner promised to make the deed, but said that it would not be because she wanted to. They went to Valdosta, parked the truck, and started up the street to the courthouse; but, before reaching it, the defendant's mother told the petitioner that she was going to fix the deed just like Willard told her, and she had better not open her mouth to the contrary if she did not want to be thrown into the river. They went to the office of F. L. Wilcox and requested him to draw a straight warranty deed from the petitioner to Willard Dowdy. After Mr. Wilcox went to the clerk's office to get a description of the property, he stated, in the presence of all parties, "What in the hell do you want to give your land away for." When the petitioner was about to answer, the defendant's mother shook her head and told her to be quiet. Mr. Wilcox refused to prepare a warranty deed conveying fee-simple title as first requested, and the defendant's mother finally suggested a deed from the petitioner to the defendant at her death. During the time they were in the presence of Mr. Wilcox, Mr. and Mrs. Myers were looking at the petitioner in a threatening manner, shaking their heads and pointing to the river every time the petitioner would make any effort to look at the deed. The petitioner is unable to read and write and requested the defendant's mother to read and explain the deed, but the request was refused. She also wanted to have Mr. Wilcox to read and explain the deed before she made her mark, but the fear of being thrown in the river by the defendant's mother and her husband, who was standing close by, prevented her from having the deed explained to her. After the deed had been signed by the petitioner, by making her mark, it was delivered to the petitioner, and she and Mr. and Mrs. Myers started back to the truck. On the way to the truck the mother of the defendant told the petitioner to give her the deed, and petitioner refused. "whereupon defendant's agents and confederates informed her that she better not forget the river, so the petitioner gave her the deed in order to keep from being harmed."
Other portions of the voluminous petition and amendment repeat over and over general allegations of fraud, deceit, conspiracy, undue influence, want of consideration, and mental incapacity as grounds for cancellation. All of these allegations are too repetitious and voluminous to be set forth here, but it is sufficient to state that no facts are alleged in support of any of such allegations. The exception here is to the judgment sustaining the defendant's general demurrer and dismissing the petition.
The only allegations of the petition which show grounds for the relief prayed are those relating to duress in the form of threats of bodily harm made by the authorized agents of the defendant. These are set forth in the statement of facts preceding this opinion. Although the threats to throw the petitioner into the river, at a time when she was alone with the defendant's agents and approaching the river, if she refused to promise to execute the deed, were sufficient to constitute duress in that at the time there was an apparent intention and ability to carry out such threats, yet the repetition of the threat and other acts of intimidation alleged to have occurred in the presence of Mr. Wilcox, in the absence of allegations showing that the petitioner was unable to secure protection from Mr. Wilcox, would not have been sufficient to show the signing of the deed to be the result of such duress as would avoid it. However, delivery of a deed to land is essential to its validity as a conveyance. Code, § 29-101; First Nat. Bank of Gainesville v. Harmon, 186 Ga. 847 ( 199 S.E. 223); Cooper v. Littleton, 197 Ga. 381 ( 29 S.E.2d 606); Thomas v. Lockwood, 198 Ga. 437 ( 31 S.E.2d 791). Was delivery of the deed here involved made in conformity with the law? The petitioner alleges that, after signing the same, she retained possession thereof; and that, while on her way to the truck with the defendant's mother and her husband, she refused to deliver the deed to the mother when requested by her to do so, and thereupon the petitioner was told to remember the river, and because of that threat she involuntarily delivered the deed to the defendant's mother. Mere empty threats in the absence of a present apparent intent and ability to carry such threats into execution are insufficient to constitute duress that will void a deed. Hoover v. Mobley, 198 Ga. 68 ( 31 S.E.2d 9); Mims v. Cooper, 203 Ga. 421 ( 46 S.E.2d 909). However, "threats of bodily harm, sufficient to overcome the mind and will of a person of ordinary firmness, and made for the purpose of coercing and which do actually coerce another into executing a promissory note, constitute duress and render such transaction voidable." King v. Lewis, 188 Ga. 594(1) (4 S.E.2d 464). At the time the threat of the river was repeated if the petitioner refused to deliver the deed, she, a woman 53 years old, was alone with the defendant's mother and her husband who were making the threat, and they were approaching the truck in which they would have been able to carry her to the river and execute that threat. These alleged facts were sufficient to show an apparent intent and ability and, hence, sufficient to overcome the mind and will of a person of ordinary firmness. They were therefore sufficient to constitute duress and, hence, sufficient to void the deed which was delivered as a result thereof. Code, §§ 20-503, 96-201. The portion of the amended petition setting up these acts was sufficient to allege grounds for the relief prayed, and for this reason and it alone — notwithstanding all other allegations of the petition were insufficient to withstand the demurrer — was yet sufficient to allege grounds for the relief sought, and the court erred in sustaining the demurrer and dismissing the petition.
Judgment reversed. All the Justices concur.