The petition, alleging mental weakness such as would prevent the grantor from understanding the nature of his act at the time the deed was executed, together with undue and controlling influence on the part of the grantee who occupied a confidential relationship with the grantor, was sufficient as against general demurrer to set forth a cause of action for cancellation.

( a) Such action was not barred by the statute of limitations, since the petition alleged that the grantor did not have the mental capacity to transact any business during the time in question.

( b) The allegations of the petition in reference to intimidation, as set forth in the corresponding division of this opinion, were subject to special demurrer, on the ground that the allegations do not show that any of the defendants had anything to do with the petitioner's wife being declared insane.

No. 16262. JULY 13, 1948.

Walter Crafton Mullins by his brother, O. F. Mullins, as guardian ad litem, filed in Cherokee Superior Court, against E. M. Barrett and six other persons, a petition which as amended alleged substantially the following: The petitioner is the owner of a described tract of land containing 105 acres on which there are 8 dwellings. The property was purchased by the petitioner's father, W. L. Mullins, now deceased, under an order of Cherokee Superior Court, out of proceeds which the petitioner, while a minor, recovered in a tort action, for serious, painful, and permanent injuries received in a railroad accident. Since being injured the petitioner has never had the mental capacity to understand simple subjects, and he was never able to study and learn anything in school from his books, and does not now have the mental capacity to understand any of the transactions hereinafter set out; nor does he understand the full meaning of what takes place when he signs a deed, and he has not mental capacity to transact any business or make any decision in his own behalf. Because of the injury it was necessary that the frontal lobe and temporal lobe be removed from the left cavity of the petitioner's cranium, and consequently he has never had the brain to function and control his thoughts. The above condition was at all times known to each of the defendants; and it was general knowledge in the community wherein the defendants and the petitioner lived. About the latter part of 1922, the petitioner's father moved from Cherokee County to Atlanta, and thereupon named the defendant Barrett as trustee of the petitioner's lands, directing him to collect rents, make repairs, and do any other act necessary to protect the property. The petitioner's father and Barrett knew that the petitioner's injury had left him without the mental capacity to look after his property. Barrett accepted the trust, and the property was turned over to him. On January 18, 1930, shortly before the petitioner reached his 19th birthday, he returned to Cherokee County, married Frances Wheeler, and moved with her into one of the houses on his land. Prior thereto he did not attend school regularly, reached only the fourth grade in grammar school, regularly, has never been able to read or write except his name, and he usually signed his name by making a mark. At all times since the petitioner was injured, he has had to rely upon relatives and friends, including Barrett, because he is not skilled in selling and buying merchandise and real estate and does not fully understand all the angles of a real-estate transaction. When the petitioner reached his 21st birthday, Barrett told him that he was now old enough to vote, and requested him to sign a paper which the petitioner believed was to indicate his support of Barrett to some elective office. The petitioner did not read the paper, and could not have understood it had he been capable of reading it, and the paper was not read to him, but he relied wholly upon the representations of Barrett that it was to assure him of the petitioner's support to some office. The petitioner signed the paper, which he has since learned was a warranty deed to his land. The relationship existing between the petitioner and Barrett was fiduciary and confidential. Barrett knew that the petitioner had never had the mental capacity to transact business in his own behalf, and perpetrated a fraud in advising him to sign a deed purporting to convey title to his lands. All of the conveyances out of the petitioner were made on the advice of Barrett; and, because of such confidential relationship, all of the transactions relative to the petitioner's property are fraudulent. Shortly after the deed purporting to convey the petitioner's property was signed, Barrett moved tenants into the house, thereby forcing the petitioner to move. Barrett has never paid to the petitioner any money or other consideration for the lands, nor has he ever accounted for the rents collected therefrom or for any other of petitioners' property which has been entrusted to him. On two occasions during the time Barrett held the property as trustee, he caused the timber to be removed and converted to his personal use. Therefore, a full and complete accounting should be had between Barrett and the petitioner. The defendants, Jack Cagle, R. G. Lawson, E. J. Long, and Arthur Gray, claim to be successors in title to the petitioner's lands under the defendant Barrett, by virtue of the purported deed fraudulently obtained from the petitioner in the manner herein set forth; and each and every defendant herein named knew in fact when he took a deed to the petitioner's lands that said lands belonged to the petitioner, and that the defendant Barrett had obtained the petitioner's lands only by the fraud perpetrated on the petitioner as herein set forth. Barrett will be insolvent after he accounts for the money collected from rents and from the sale of timber. He should be enjoined from changing the status of the property, and unless a receiver is appointed he will place the assets beyond the reach of the court. The purported deeds which Barrett obtained by fraud, together with all conveyances of the defendants who are claiming under him, should be canceled, and possession of the lands should be given to the petitioner. Among other things, the petitioner prayed for process, service, recovery of the property with mesne profits, cancellation, injunctive relief, receivership, accounting, and damages from cutting timber and from using the lands as a poultry farm.

General and special demurrers were interposed by the defendants to the petition as amended. The trial court sustained one ground of the special demurrer, and overruled all other special grounds. The court also sustained the general demurrers, and dismissed the petition as amended. The plaintiff, in a direct bill of exceptions, excepted to the judgments in so far as the general demurrers, and the one ground of special demurrer, were sustained, and to the judgment dismissing the petition as amended.

ATKINSON, Justice.

(After stating the foregoing facts.) While a mere allegation of weakness of mind not amounting to imbecility is not sufficient to set forth a cause of action for cancellation of a deed, there being no allegation of fraud or undue influence (compare Jones v. Hogans, 197 Ga. 404, 410 (4), 29 S.E.2d 568, and citations), nevertheless, where the mental weakness is pronounced, such as would prevent the grantor from understanding the nature of his act at the time the deed was executed, and especially where, as alleged in this case, such mental impairment is united with alleged undue and controlling influence on the part of one occupying a confidential relationship with the illiterate grantor, it will authorize a cancellation on the ground of fraud. See Maddox v. Simmons, 31 Ga. 512 (7).

"Any relations shall be deemed confidential, arising from nature or created by law, or resulting from contracts, where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another; or where, from similar relation of mutual confidence, the law requires the utmost good faith; such as partners, principal and agent, etc." Code, § 37-707.

Taking the allegations of the petition to be true, as must be done in considering the general demurrers, the petition as amended set forth a cause of action.

Allegations of mental weakness of the character above mentioned, when united with alleged undue and controlling influence on the part of one occupying a confidential relationship with the illiterate grantor, setting forth a cause of action for cancellation, as we have held, it necessarily follows that the petition was not subject to demurrer on the grounds, (a) that the facts therein set out show on their face that the plaintiff's remedy is barred by the statute of limitations; (b) that the plaintiff is guilty of laches; and (c) that the successors of the grantor have been in possession under duly recorded deeds for a period of more than eleven years. This is true for the reason that, if the grantor as alleged did not have the mental capacity to understand simple subjects or to transact any business during the time in question, he would not have had sufficient mental capacity to undertake to maintain a suit for the recovery of his property. See, in this connection, the Code, §§ 3-801, 85-411; Mayer v. Waterman, 150 Ga. 613 (1) ( 104 S.E. 497); Morris v. Mobley, 171 Ga. 224 (2) ( 155 S.E. 8), and citations.

The present case is distinguished by its facts from Jones v. Johnson, 203 Ga. 282 ( 46 S.E.2d 484), and similar cases, in which no question of mental impairment was involved.

The petition as amended alleged that no part of the consideration named in the deed had been paid. Therefore, there was nothing to restore as between the plaintiff and the immediate grantee. Under the pleadings it appears that the grantee had conveyed the property for a valuable consideration to a co-defendant, but the petition contains the further allegation that all the defendants took with notice. It follows that the petition set forth a cause of action for some of the substantial relief prayed, and the trial court erred in dismissing the action on general demurrer. Arteaga v. Arteaga, 169 Ga. 595 (4) ( 151 S.E. 5).

The allegations of the petition to the effect that after the petitioner was moved from his land he and his wife began inquiring what rights they had, when his wife was hailed into court, declared insane, and sent to the State Hospital at Milledgeville where she stayed for two months before being released by the hospital authorities because she was not insane, and that the petitioner had fear that either he or members of his family would be sent to Milledgeville at the hands of the defendant Barrett if he further attempted to exercise his rights to his lands — were subject to the special demurrer interposed by the defendants Cagle, Lawson, Long, and Gray, on the ground that the allegations do not show any reason for intimidation, in that it is not charged that any of the defendants had anything to do with the petitioner's wife being declared insane. Accordingly, the trial court did not err in sustaining this ground of special demurrer.

Judgment affirmed in part, and reversed in part. Jenkins, Chief Justice, Duckworth, Presiding Justice, Wyatt, Head and Candler, Justices, and Judge Lilly concur.