ARGUED JANUARY 15, 1958.
DECIDED MARCH 7, 1958.
Cancellation. Hall Superior Court. Before Judge Kelley. November 7, 1957.
Brannon Brannon, E. C. Brannon, Tifton S. Greer, Joseph G. Collins, for plaintiff in error.
Telford, Wayne Smith, contra.
The trial court did not err in granting a nonsuit.
ARGUED JANUARY 15, 1958 — DECIDED MARCH 7, 1958.
Frances Martin filed an action in two counts against P. E. Alford for cancellation and other relief. In substance, she alleged: The parties own as tenants in common described lands. They carried fire insurance on the buildings until May 9, 1953, at which time the defendant and an insurance agent came to the residence on the property, which was occupied by the petitioner, and said they had decided it would be better to change the insurance, so that the petitioner would pay the insurance premium on the dwelling, and the defendant would pay the insurance premium on the barn. The petitioner read the document presented to her for signature, and saw that it was their joint insurance policy. The defendant said, "Sign here," and the petitioner signed as directed. If the petitioner signed a deed, copy of which is attached as "Exhibit B", it was done without her knowledge, consent, or intent, and because it was purposely concealed as a part of the insurance policy. On leaving, the defendant handed the petitioner a folded paper and said, "Here is your old deed." After the defendant and the insurance agent left, the petitioner discovered, concealed in the old deed, a deed from the defendant to her, copy of which is attached as "Exhibit A", purporting to convey the defendant's one-half interest in 7 of the 92 acres owned jointly by the petitioner and the defendant. The petitioner did not accept delivery of this deed, and does not now accept delivery. She got in touch with the defendant, and learned that he claimed to have a deed from her to him for her one-half interest in 85 acres of the tract. The defendant has refused to correct the wrong, although the petitioner has offered, before suit, to deed back the one-half interest in the land described in "Exhibit A". The defendant procured Tom Moseley to witness the deed, "Exhibit B", although he did not see the petitioner sign it, and it was not acknowledged by the petitioner to Moseley. The value of the 7 acres described in "Exhibit A" is between $1,000 and $1,500; the value of the 85 acres described in "Exhibit B" is between $5,000 and $7,500. The petitioner consents that her deed be canceled, or she will make a voluntary deed to the defendant, when the deed shown by "Exhibit B" is canceled or corrected.
In count two it was alleged: The petitioner was 26 years old in 1953, and went through the ninth grade in school. She has little ability to contract bargains. The defendant has been trading in real estate for many years and has great mental ability in contracting bargains. No deed known to the petitioner was made, and whatever was done was done by trick, artifice, and fraud. If a contract was made, the deed should be set aside and canceled, because of the great disparity in mental ability of the petitioner and the defendant to contract bargains.
The defendant died before trial, and his executrix was made a party. At the conclusion of the petitioner's evidence, the trial judge granted a nonsuit. The petitioner excepts to this judgment, and to the exclusion of certain testimony, as will hereafter appear.
The testimony offered on behalf of the petitioner, in so far as it is germane to the allegations of the petition, was in substance as follows:
Frances Martin testified in her own behalf: She and the defendant carried a joint insurance policy, written by Harry Johnson, as agent. The insurance was changed on May 9, 1953. When the conversation took place there, when the insurance was changed, the petitioner, the defendant, and the insurance agent were on the front porch of the residence where she lived. The value of the 7 acres and house was $2,000. The value of the 85 acres and barn was about $4,700. Her first knowledge that the defendant claimed to have a deed to the 85 acres was when an attorney procured a copy of it from the record about two weeks after the transaction of May 9, 1953.
Mrs. Henry Martin, the mother of the petitioner, testified: She was present at the home when the insurance was changed. She was out on the back porch. She overheard a conversation over the telephone between the petitioner and the defendant. The defendant came down there in about 20 minutes after the telephone conversation. "I did hear the conversation between them then. She got on him about it and he told her if she wouldn't have anything done he would put it back just like it was. She got on him about the changing of that insurance. He said he would take out the insurance and her take out on the house and house things and him take it out on the barn because she used the house and he used the barn. That was all that was said. He told her if she wouldn't have anything done and start no lawsuit that he would put it back just like it was. He was talking about the land, her half of it and his half of it. He said he would put it back like it was if she would pay and she said, `Mr. Alford, I never messed it up'; and she would not pay for taking up the papers and changing it back."
This witness further testified: On the date of May 9, 1953, when Frances left the porch and came in to eat lunch, she laid the old deed on the table, and the deed to the 7 acres was inside of the old deed. The witness had known the defendant for 15 or 20 years; he was a good business man and experienced.
Junior Poole testified: He was a cousin of the petitioner and was living in the home of the petitioner and his aunt when the defendant and Mr. Johnson came there to change some insurance papers. He heard statements made by the defendant to the petitioner on the next Monday "in reference to undoing something they had done." The petitioner called him back, and he said he "would put it back like it once was."
Tom Moseley testified: He signed the deed (Exhibit B) as a witness. He did not see the petitioner sign it, and she did not acknowledge to him that she had signed it. The defendant had many transactions in real estate and was a shrewd business man, so far as the witness knew.
Ed C. O'Kelley testified that, in his opinion, the 85 acres of land were worth $3,000 more than the 7 acres and the house.
Cham Stow testified: The defendant got him to assist in measuring some land. They measured "off from the barn around and back to the driveway." Mrs. Martin came out and asked what the defendant was doing; and the defendant said that he was measuring off to sow some oats. The witness had known the defendant for 15 years or longer, and knew of him being in the real-estate business and handling lots of real estate. He considered the defendant a good, shrewd business man.
1. "Any representation, act, or artifice intended to deceive, and which does deceive another, is such a fraud as may authorize cancellation of a written contract; but a party to a contract who can read must read or show a legal excuse for not doing so; and ordinarily, if fraud is the excuse, it must be such fraud as prevents the party from reading. Nor in such case will a mere fraudulent statement by the opposite party or his agent as to the contents of the writing furnish a legal excuse; . . ." Livingston v. Barnett, 193 Ga. 640 (4) ( 19 S.E.2d 385); Lewis v. Foy, 189 Ga. 596 ( 6 S.E.2d 788); Jackson v. Shahan, 205 Ga. 411 ( 54 S.E.2d 138); West v. Carolina Housing c. Corp., 211 Ga. 789 ( 89 S.E.2d 188).
In the present case it appears that the petitioner had completed the ninth grade in school, that she could read, and there is nothing in the evidence to show that she was prevented from reading the deed executed by her.
2. Error is assigned in the bill of exceptions because the trial court, on objection, refused to let the petitioner, testifying in her own behalf, answer the question, "If you signed it [Exhibit B], did you knowingly sign it?" The expected answer was: "If I signed it, I did not knowingly sign it." The court also excluded the petitioner's answer to the question: "If you signed your name to it, did you intend to sign it?" The expected answer was, "If I signed it, I did not intend to."
Where any suit shall be instituted or defended by the assignee, transferee, or personal representative of a deceased person, the opposite party shall not be allowed to testify in his own favor as to transactions or communications with such deceased person. Code § 38-1603 (1). In the present case, the petitioner, being a grantee in a deed from a deceased person, is an "assignee or transferee" within the prohibition of § 38-1603 (1). Hendrick v. Daniel, 119 Ga. 358 ( 46 S.E. 438); Turner v. Woodward, 136 Ga. 275 ( 71 S.E. 418); Culberson v. Everett, 152 Ga. 497 ( 110 S.E. 275); Sikes v. Seckinger, 173 Ga. 673, 677 ( 160 S.E. 911); Brooks v. Brooks, 185 Ga. 549, 553 ( 195 S.E. 869). The suit being defended by the personal representative of the deceased defendant, the petitioner could not testify as to her intent in transactions with the deceased. Donald v. Groves, 160 Ga. 163 ( 126 S.E. 583); Smith v. Smith, 187 Ga. 743, 747 ( 2 S.E.2d 417); Shadburn v. Tapp, 209 Ga. 887 ( 77 S.E.2d 7).
3. Error is also assigned because the court, on objection, excluded the petitioner's testimony in response to the following question, "What did Mr. Johnson say to you with reference to changing this insurance?" Counsel stated to the court that "We expect this witness to testify that Mr. Johnson said, `We want to change the insurance, and it is necessary for you to sign in order to change it.'"
Hearsay evidence has no probative value, although admitted without objection. Dowling v. Doyle, 149 Ga. 727, 731 ( 102 S.E. 27); Higgins v. Trentham, 186 Ga. 264 ( 197 S.E. 862). It was not error to refuse to allow the witness to testify as to statements of a person who was not a party in the cause.
Judgment affirmed. All the Justices concur.