JUNE 16, 1941.
Equitable petition. Before Judge Moore. Fulton superior court. December 14, 1940.
W. F. Moore and Vester M. Ownby, for plaintiff in error.
Judson Andrews, contra.
Rulings on questions raised by motion for new trial after verdict for the plaintiff in action to cancel a deed to the defendant on grounds of fraud and of mental incapacity of the grantor, and for recovery of possession of land.
No. 13677. JUNE 16, 1941.
The petition as amended alleged that the plaintiff, Myrl Brown, held title to a house and lot in the possession of the defendant, Irene Page; that in April, 1938, the former owner executed to the plaintiff a deed to the property, which was recorded in July, 1938; that this grantor died on March 30, 1939; that on March 22, 1939, while he was "in the portals of death, the defendant procured the execution of a deed, signed by mark, from the said grantor on the same realty," by fraud, and while he was "in a coma, was unconscious, knew nothing of its execution," and never regained consciousness, as a "fraudulent scheme to hinder, delay, and defraud petitioner's possession and title," this deed having been recorded on March 24, 1939; that the defendant was insolvent, collecting rents, and had not paid the taxes; and that the plaintiff had no complete remedy at law, and brought the suit in equity to avoid multiplicity of suits and to adjudicate all issues in a single action of equity. She prayed for "judgment placing her in possession" of the property; for cancellation of the defendant's deed; and for impounding of the rents pending the litigation. The defendant in her answer admitted the existence of her own deed and the record, as alleged, of the plaintiff's "purported deed;" denied other essential averments of the petition; attacked plaintiff's deed as fraudulent, undelivered, without monetary consideration; and sought to set up a claim in herself, superior to that of plaintiff, by virtue of an oral agreement between her and the grantor, whereby she would expend certain moneys on the property, which she paid, and he would deed the property to her, as he did. She prayed for an injunction against plaintiff, and for cancellation of plaintiff's deed.
The defendant was the widow of the grantor in the two deeds. The plaintiff was the niece of the deceased first wife of the grantor, and also their adopted daughter. The deed to the defendant recited a consideration only of love and affection. The deed to the plaintiff recited love and affection and also a "valuable consideration, to wit, $10 at this time, $10 last month, and approximately $5 per month for the past 3 years."
There was no evidence to show fraud or invalidity of the deed to the plaintiff, as alleged in the answer. There was conflicting evidence as to the mental condition of the grantor when the deed to the defendant was executed. The jury found for the plaintiff, and that the deed to the defendant was procured through fraud. The defendant assigned error on the refusal of a new trial.
1. To the general rule that in order for a plaintiff to maintain an equitable petition to remove a cloud upon his title he must allege and prove possession in himself, "there are exceptions . . (1) in case of wild lands, and (2) where there is a distinct head of equity jurisdiction sufficient to support the action, as where deeds are obtained by fraud or other illegal means." Mentone Hotel Realty Co. v. Taylor, 161 Ga. 237 ( 130 S.E. 527); Simpson v. Kelley, 171 Ga. 523 ( 156 S.E. 198). Mental incapacity of the grantor to execute to the defendant the deed which the plaintiff seeks to have canceled falls within the latter exception, dispensing with the necessity for the plaintiff to allege and prove possession of the property. Morris v. Mobley, 171 Ga. 224 (1, 6) ( 155 S.E. 8); Moody v. McHan, 184 Ga. 740, 744 ( 193 S.E. 240). On the question of the mental capacity of the grantor to execute the deed here in question, which the jury found invalid, while there was testimony to sustain its validity, there was testimony for the plaintiff that the grantor was in a coma at the time of the execution of the instrument, and that while the grantor could write, and had previously executed with his own signature the deed to the plaintiff on which she claimed title, the deed to the defendant was executed with the grantor's mark. Accordingly, on this controlling issue, there is no merit in the general grounds of the motion for new trial.
2. "A registered deed shall be admitted in evidence in any court without further proof, unless the maker of the deed, or one of his heirs, or the opposite party in the cause will file an affidavit that the said deed is a forgery, to the best of his knowledge and belief, when the court shall arrest the cause and require an issue to be made and tried as to the genuineness of the alleged deed." Code, § 29-415. The deed to the plaintiff, on which she claimed title to the property in dispute, reciting a valuable consideration and having been duly recorded, and no affidavit of forgery having been filed as required by the statute, the court did not err in admitting the deed in evidence over the objection that there was no proof of its execution. Rogers v. Eason, 183 Ga. 431 (3) ( 188 S.E. 693); Follendore v. Follendore, 110 Ga. 359, 361 ( 35 S.E. 676).
3. "Under repeated rulings of this court, a judgment overruling a demurrer can not be made a ground of a motion for new trial; but direct exception should be taken to such ruling, if a review of it is to be had." Turner v. Willingham, 148 Ga. 274 ( 96 S.E. 565); Zachry v. Industrial Loan Investment Co., 182 Ga. 738 (5) ( 186 S.E. 832).
4. The overruling of a motion for a nonsuit can not be reviewed by a motion for new trial, but should be made the subject of direct exception. Dickson v. Citizens Bank Trust Co., 184 Ga. 398 (8) ( 191 S.E. 379), and cit.
5. "A ground of a motion for a new trial alleging error in an instruction to the jury must set forth, either literally or in substance, the language complained of, or such ground can not be considered." Central of Georgia Ry. Co. v. Bond, 111 Ga. 13 (6), 16 ( 36 S.E. 299), and cit. A ground merely referring in general terms to an instruction and stating the movant's conclusion as to its meaning and effect, "without stating with reasonable certainty what the instruction was, does not come up to the legal requirement that an assignment of error shall be plaintly and distinctly made." Southern Ry. Co. v. Dantzler, 99 Ga. 323 (2) ( 25 S.E. 606). Under these rules, the following exception was insufficient: "The court erred in instructing the jury they were to pass upon both deeds during the trial of said case (brief of evidence, page 4), and then giving a contradictory charge or instruction to the jury during the charge of the court that they were to consider only the deed from [the grantor] to [the defendant], and whether the deed to [her] was a fraud or procured by fraud, and that this instruction was given in such a way as to unduly influence the jury and cause them to accept said instruction as an expression of opinion by the court. That the said charge was error for the reason that if there was an issue in said case for the jury to pass upon, said issue under the pleading in said case was both deeds set out in said suit, leaving to the jury the matter of determining which deed was fraudulent, if there was fraud, since the court instructed the jury in said charge that the burden in said case was upon the plaintiff. That the charge here complained of amounted to instructing the jury to find for the plaintiff."
6. "As a general rule, in order for a refusal to permit a witness to answer a question propounded to him by his counsel to constitute a ground for new trial, it must appear that a pertinent question was asked, that the court ruled out the answer, that a statement was made to the court at the time, showing what the answer would be, and that such testimony was material and would have benefited the complaining party." Barron v. Barron, 185 Ga. 346 ( 191 S.E. 905), and cit.; Rainey v. Moon, 187 Ga. 712 (12), 718 ( 2 S.E.2d 405). Accordingly, no ground for a new trial is presented by the exception that "the court erred in denying the defendant the right to testify as to the amount of money she had expended on the property described in the deed" in dispute, "the same being and constituting the consideration of said deed."
7. The deed to the defendant, referred to by the court, being the one as to which the petition prayed for cancellation, there is no merit in the exception that "the court erred in stating upon the trial of said case and in the presence of the jury (brief of evidence, page 12): `Is that the deed you are asking to have canceled and declared void?'" and after a statement by counsel for the plaintiff, "That is right; we produce it for that purpose only," in asking, "Well, don't you introduce it for the purpose of having it canceled?" to which counsel replied, "Well, I suppose so;" no ground of exception or claim or showing of injury appearing.
8. The court did not err in refusing a new trial.
Judgment affirmed. All the Justices concur.