Summary
observing that “[t]he deed of an incompetent who has never been adjudicated to be of unsound mind is not absolutely void, but only voidable” by statute
Summary of this case from Hernandez v. BanksOpinion
22953.
ARGUED MAY 10, 1965.
DECIDED JUNE 17, 1965.
Equitable petition. Douglas Superior Court. Before Judge Foster.
John M. Morrow, for plaintiff in error.
Noland Coney, John L. Coney, contra.
The petition did not state a cause of action against the demurrant, and it was error to overrule her general demurrer.
ARGUED MAY 10, 1965 — DECIDED JUNE 17, 1965.
On October 26, 1964, Moises Garcia and Julia B. Garcia brought an action for damages and equitable relief against H. B. Holcomb and Mrs. Lois E. Holcomb. The case comes to this court on the exception of Mrs. Lois E. Holcomb to the overruling of her general demurrer.
The petition alleged: On April 28, 1960, the plaintiffs purchased certain lands from H. B. Holcomb and H. B. Holcomb executed a warranty deed to them, a copy of the deed being attached as an exhibit. At the time H. B. Holcomb executed the warranty deed to the plaintiffs, he and Mrs. Lois E. Holcomb were husband and wife. H. B. Holcomb obtained title to the property conveyed to the plaintiffs by warranty deed dated June 29, 1954, from L.D. Holcomb, Gibbs T. Holcomb, Mary Holcomb Shields, Cynthia Holcomb Nash, Maxine Holcomb Nash, and Lucile Holcomb. These grantors are the children of H. B. Holcomb, and the deed was a conveyance of the interest of Mrs. Annie Mae Holcomb, the mother of the grantors, and the wife of H. B. Holcomb prior to her death. On April 28, 1960, the plaintiffs executed a promissory note in the principal amount of $5,750, with interest from date at 6%, payable in 114 monthly installments of $65 each, jointly to H. B. Holcomb and Mrs. Lois E. Holcomb. On the same date the plaintiffs executed a deed to secure debt to H. B. Holcomb and Mrs. Lois E. Holcomb conveying the property described in their warranty deed from H. B. Holcomb. The plaintiffs paid the monthly installments due on their promissory note through August 28, 1963. About September 1, 1963, H. B. Holcomb informed the plaintiffs that their title was defective for the reason that his daughter Lucile Holcomb was not mentally competent to execute a contract of any kind at the time the warranty deed from his children was executed to him. On investigation the plaintiffs discovered that Lucile Holcomb had in fact been mentally informed of the defect in the title of H. B. Holcomb they have made diligent effort to cure the defect in title. The plaintiffs have been deprived of an undivided one-seventh interest in the property, and H. B. Holcomb has breached the warranty in his deed to them. Mrs. Lois E. Holcomb had actual knowledge of the defect in the deed executed by H. B. Holcomb conveying the premises to the plaintiffs. On September 19, 1963, H. B. Holcomb obtained a divorce from Mrs. Lois E. Holcomb, and she was awarded the interest of H. B. Holcomb in the plaintiffs' note and security deed as a part of the decree in the divorce case. Immediately after Mrs. Lois E. Holcomb obtained the interest of H. B. Holcomb in the note and deed to secure debt, she began "a course directed solely to taking the property of the plaintiffs away from them." She began coming to their residence at all hours of the day and night "to inform the plaintiffs that their title was not good, and that she was going to throw them off the premises." Mrs. Lois E. Holcomb is attempting to sell the property of the plaintiffs on the first Tuesday in November, 1964, under the power of sale in the deed to secure debt. The plaintiffs are ready, willing, and able to carry out the agreement made with an attorney formerly representing Mrs. Lois E. Holcomb as soon as the defendants satisfy the defect in title to their property. Due to the breach of warranty and the false and fraudulent representations made by H. B. Holcomb and Mrs. Lois E. Holcomb, the deed to secure debt and promissory note executed April 28, 1960, should be canceled of record. The effort on the part of Mrs. Lois E. Holcomb to sell their property under the power of sale contained in the deed to secure debt is another effort on her part to harass them and to further encumber and cloud their title, and she should be enjoined from selling or attempting to sell their property under the power of sale in the deed. By reason of the breach of warranty, and the false and fraudulent misrepresentations of fact made by H. B. Holcomb and Mrs. Lois E. Holcomb, the plaintiffs have been injured and damaged in the sum of $5,000.
It was prayed that the plaintiffs recover judgment against the defendants jointly and severally in the sum of $5,000; that the deed to secure debt and promissory note from the plaintiffs to the defendants be canceled of record; that Mrs. Lois E. Holcomb be enjoined from selling or attempting to sell the property described in the deed to secure debt under the power of sale contained therein; and for other relief.
NOTE: The opinion in this case was prepared by the late Presiding Justice Head for submission to the court and is approved by the court as written.
Ordinarily a purchaser of land, who is in possession, can not have relief in equity against the payment of the purchase money, upon the mere ground of a defect of title, before eviction. Exceptions to this rule are where the vendor executing a warranty deed or bond for title is insolvent, or a nonresident with no property within the jurisdiction of the State. McGehee v. Jones, 10 Ga. 127 (2,4); Smith v. Hudson, 45 Ga. 208; Mallard v. Allred, 106 Ga. 503 ( 32 S.E. 588); Gould v. Small, 121 Ga. 747, 748 ( 49 S.E. 723); Henderson v. Fields, 143 Ga. 547 ( 85 S.E. 741); Campbell v. Gormley, 184 Ga. 647, 651 (3) ( 192 S.E. 430); Crowell v. Brim, 191 Ga. 288, 293 ( 12 S.E.2d 585).
The plaintiffs in the present case are in possession of the property conveyed to them by the warranty deed of H. B. Holcomb. They have not alleged that H. B. Holcomb is insolvent, nor have they alleged any other fact to show that equity should interfere to restrain the foreclosure sale. They admit that they have not made the payments due on their note since August, 1963. They have not been evicted from the land by legal process, nor have they yielded possession by reason of a paramount title in another. The petition entirely fails to state a cause of action for cancellation of the promissory note and deed to secure debt, or for injunction to prevent Mrs. Lois E. Holcomb from foreclosing the deed to secure debt because of the failure of the plaintiffs to pay the installments due on their note.
The alleged defect in title relates to an undivided one-seventh interest in the property. It is asserted that one of the grantors in the warranty deed to H. B. Holcomb was mentally incompetent when the deed was executed. It is not alleged that this grantor had been adjudged incompetent at the time she executed the deed. The deed of an incompetent who has never been adjudicated to be of unsound mind is not absolutely void, but only voidable. Code § 20-206. There is no allegation that the incompetent, through her guardian or next friend, has instituted legal action to repudiate her contract. Certainly Mrs. Lois E. Holcomb can not deprive the plaintiffs of their property because of the defect in title, and her alleged threats to do so, while no doubt harassing to the plaintiffs, are baseless in law.
It is unnecessary for us to decide in the present case whether the petition alleges a cause of action for breach of warranty against H. B. Holcomb as to a one-seventh interest in the property, since we are dealing only with the questions made by the general demurrer of Mrs. Lois E. Holcomb, which asserted that the petition did not state a cause of action in law or equity against her. Mrs. Lois E. Holcomb was not a warrantor in the deed to the plaintiffs. The fact that she had knowledge of the defect in title of her former husband at the time he executed the warranty deed to the plaintiffs could not make her liable for a breach of his contract of warranty.
The petition did not state a cause of action in law or equity against Mrs. Lois E. Holcomb for any of the relief prayed, and it was error to overrule her general demurrer.
Judgment reversed. All the Justices concur.