Opinion
14628.
SEPTEMBER 13, 1943.
Complaint for land. Before Judge Mitchell. Dade superior court. March 16, 1943.
Rosser Rosser and Julius Rink, for plaintiffs in error.
McClure, Hale McClure and Gleason Painter, contra.
1. In a suit for land the defendants' answer, alleging that the deed relied upon by the plaintiff was obtained by the plaintiff administering to the defendant a drink which affected the defendant to such a degree as to deprive him of his reason and to disqualify his mind to apprehend the nature of his act and its probable consequences, and containing a prayer for cancellation of the deed, set up a valid defense. The court erred in striking that allegation on demurrer.
2. Where such paragraph of the answer was erroneously stricken, the error was not corrected by permitting the defendant to testify in support of the stricken allegation, as the testimony was then without pleading to support it.
3. In a suit for land, where the defendant sought, under the Code, § 33-107, to set off valuable improvements, the fact that the plaintiff's deed was duly recorded was not necessarily conclusive as against the defendant, on the question of good faith.
4. Under the pleadings and the evidence, only the rights of the parties under the deed referred to in the first headnote were involved in the case.
5. There were issues of fact that should have been submitted to the jury; and the court erred in directing the verdict in favor of the plaintiff.
No. 14628. SEPTEMBER 13, 1943.
In August 1941, Wilson M. Hardy, as receiver for B. W. Newsom, sued Drew G. McKaig and certain of his children, alleging that the defendants were in possession of land lot 103, 160 acres, in the 11th district, fourth section of Dade County, to which the plaintiff claimed title by virtue of a quitclaim deed executed by Drew G. McKaig to B. W. Newsom, dated September 25, 1925, and recorded on September 27, 1925. The defendants answered, alleging that they had no knowledge or notice of the execution of the deed from McKaig to Newsom, and that such deed was not in fact the act of McKaig; that the title to the land was in McKaig by reason of a deed to him from A. B. Camp, dated March 7, 1923, and properly recorded; and that McKaig had been in open, notorious, and uninterrupted possession of the land since 1923, had paid all taxes thereon, cleared the land, made valuable building improvements, permitted his children to erect three dwellings, of the value of $1000 each, all of which was done in good faith, believing the title to the property to be in McKaig; that the defendants had no knowledge of the quitclaim deed until the filing of the instant suit seventeen years after the deed purported to have been executed; that the value of the land at the time was $750, and it is now worth $4000; and that the one dollar stated as the consideration in the quitclaim deed was never paid. It was prayed that the deed from Drew G. McKaig to B. W. Newsom be canceled, but, if found valid, that defendants be allowed to recover for permanent improvements placed upon the land.
The plaintiff demurred to paragraph 5 of the answer, which alleged that the deed to B. W. Newsom was not the act of Drew G. McKaig. The demurrer was sustained, and that part of the answer was stricken. In paragraph 5 it was alleged as follows: The defendant avers that since the filing of this suit he has examined the records in Dade County, and learned that there is of record a quitclaim deed purporting to convey the land in question to B. W. Newsom. The deed was dated March 25, 1925, and recorded March 27, 1925. However, if such a deed exists, it was executed under conditions concerning which defendant has neither knowledge nor recollection. About the time stated, Newsom invited defendant to ride in an automobile from Lookout Mountain to Chattanooga. They stopped at Fairyland on top of Lookout Mountain, where Newsom entered a store or filling-station, while defendant remained in the car. In a short time an attendant at the filling-station came out to the automobile and offered defendant a drink, which was declined. The attendant insisted that it was paid for, and finally the defendant took the drink. Shortly thereafter defendant lost his memory. During the balance of the day and until the next morning his mind was a total blank. During this time he may have signed such a deed. However, if he did so, he did not receive any consideration whatsoever. The following morning defendant found himself at Rossville, Georgia, at the home of his sister, from whom he borrowed $5 to defray his expenses back to Lookout Mountain. Defendant has no recollection or knowledge of anything that happened between the time he and Newsom left Fairyland until he borrowed $5 the next morning. Upon their reaching the filling-station referred to above, defendant's mind was not affected in any manner. Prior to this time there had not been any discussion of any sale of land between defendant and Newsom. Defendant is unable to give the name of the filling-station at which he and Newsom stopped, or the name of the attendant. While defendant does not know who made up the drink handed to him, he believes the drink was prepared by Newsom in order to render defendant helpless; and he charges and believes the drink was delivered by Newsom to the attendant, to be in turn delivered to defendant, for the purpose of weakening his mind, so that he could be induced to do the will of Newsom. Defendant had never offered any land for sale to Newsom. The drink was part of a plan on the part of Newsom to render defendant helpless, and then cause the deed to be executed by him while he was in a helpless condition. The drink, whatever it was, did destroy his memory, and was only part of the fraud Newsom had planned and carried into effect in order to get a deed to the land owned by defendant. The entire transaction in obtaining such a deed was a fraud perpetrated upon defendant by Newsom; and should the deed obtained under the circumstances be allowed to stand, then defendant will stand cheated and defrauded out of his property, and Newsom and those holding under him will be permitted to enrich themselves to defendants' injury and damage.
In that part of the answer where the defendants sought to establish a right to recover for improvements placed upon the land, in the event the deed from McKaig to Newsom was found valid, the defendants alleged as follows: Drew G. McKaig was in possession of the land for a number of years before the date of the alleged deed, and has been in continuous, open, notorious possession of the land ever since, without hindrance or any notice or claim on the part of Newsom or any person claiming any interest in the land. Neither Newsom nor any one holding under him has ever, at any time before or since the alleged making of the deed, made any demand or claim for the possession of the land, or for any payment of rent. During all the above time McKaig held himself out to the world as sole owner, and exercised all the rights and privileges of an owner. He returned the property for taxes, paid all taxes, cleared new land at will, erected new buildings, and made other improvements. Newsom on several occasions advised defendants that he had no claim on the land, and so far as he knew no one else had any claim against it. The defendants bona fide believed that the full legal title was in Drew G. McKaig. Under this belief children of Drew G. McKaig, who also are defendants, made valuable improvements on the property, such improvements consisting of three five-room houses each of the value of approximately $1000. None of the defendants had any knowledge of the deed from McKaig to Newsom, or the record thereof, until after the filing of the instant suit in 1941.
The court sustained a demurrer, and struck paragraph 5 of the answer, where the defendant alleged that the signing of the deed by Drew G. McKaig was not his act. This ruling was excepted to pendente lite. In the trial, however, the court permitted Drew G. McKaig to testify in support of paragraph 5, and he related the circumstances therein alleged.
On the trial the court refused to permit the defendants to introduce offered evidence to show valuable improvements made in good faith, and directed a verdict in favor of plaintiff. To these rulings the defendants excepted.
1. The first question for decision is whether the court erred in sustaining a demurrer to the fifth paragraph of the defendants' answer set forth above, which was in defense to the execution of the deed dated March 25, 1925, and recorded March 27, 1925. "Fraud will authorize equity to annul conveyances, however solemnly executed, and to relieve against awards, judgments, and decrees obtained by imposition." Code, § 37-709. "Great inadequacy of consideration, joined with great disparity of mental ability in contracting a bargain, may justify equity in setting aside a sale or other contract." § 37-710. "Whatever may be the rights of third persons, it is a rule of law of universal acceptance, that, as between the original parties thereto, fraud in its procurement voids a contract, and this upon the theory that, the consent of the parties being necessary to the binding force of a contract, if one, apparently consenting by the execution of a written contract, can show that he did not in fact consent to its terms as therein expressed, but that his apparent consent was induced by false and fraudulent practices, by means of which he was overreached by the other party, and, without negligence upon his own part, really deceived as to the terms of the contract, he would be entitled to be relieved from its apparent obligations. . . Fraud is exceedingly subtle in its nature. There are infinite means by which it can be accomplished. In its conception human ingenuity is limitless in its capabilities. It is therefore impossible to state any general rule by which particular frauds are to be identified. Classification is almost, if not quite, impossible. It may be perpetrated by willful misrepresentations made by one person to another, with a design to mislead and which do actually mislead another. It may be perpetrated by signs and tricks, and even silence may in some instances amount to fraud." Wood v. Cincinnati Safe Lock Co., 96 Ga. 120 ( 22 S.E. 909). See Georgia Cotton Growers Co-Operative Association v. Smith, 163 Ga. 761 ( 137 S.E. 233); Nichols v. Lanier, 164 Ga. 445 (2) ( 139 S.E. 2); Williams v. Toomey, 173 Ga. 199 ( 159 S.E. 866); Kent v. Jefferson Mortgage Co., 190 Ga. 643 ( 10 S.E.2d 37). The facts in Chestnut v. Weekes, 183 Ga. 367 ( 188 S.E. 714), were somewhat similar to those of the instant case. It was alleged that the husband of a grantee in a deed administered a drug to the grantor for the purpose of destroying her mind and, having so done, held grantor's hand and traced her name to the deed. This court said that in the circumstances the signing of the name of the grantor would not be her act, and would be void and insufficient to convey legal little. While it is true that the defendant in the case at bar did not aver that he saw Newsom, the plaintiff's predecessor, mix the drink, or that Newsom delivered the drink to him, facts may be proved by circumstantial as well as by direct evidence. The averments in paragraph 5 of the answer did connect Newsom, to the extent that he invited defendant to ride in the automobile. Newsom was in the filling-station when the drink was served. Newsom drove defendant to Chattanooga, where according to the record, defendant executed a quitclaim deed in consideration of one dollar, conveying to Newsom land worth $750. Regardless of what affected the defendant's mind, the vendee in driving him to Chattanooga had the opportunity of observing his condition.
Where a party at the time of entering into a contract or executing an instrument is intoxicated to such a degree as to deprive him of his reason and to disqualify his mind to apprehend the nature of his act and its probable consequences, a court of equity may grant relief by rescission and cancellation. Equity will grant relief where the transfer of a valuable property has been fraudulently extorted, for a grossly inadequate consideration, from a person while in such a state of intoxication as to render him incapable of transacting business. Where, as in the instant case, it is alleged that the intoxication was produced by the act or connivance of the person against whom the relief is sought, it set up a valid defense and should not have been stricken on demurrer. Code, § 20-207; Neal v. Neal, 153 Ga. 276 ( 111 S.E. 903); Phillips v. Phillips, 163 Ga. 899 ( 137 S.E. 561); Bing v. Bank of Kingston, 5 Ga. App. 578 ( 63 S.E. 652); Thackrah v. Haas. 119 U.S. 499 ( 7 Sup. Ct. 311, 30 L. ed. 486); 9 C. J. 1178; 9 Am. Jur. 364; 12 C. J. S. 976; 36 A.L.R. 619; 54 L.R.A. 440; 2 L.R.A. (N.S.) 667; 17 L.R.A. (N.S.) 1067; 25 L.R.A. (N.S.) 596; 8 Ann. Cas. 254.
2. Nor was the error in striking paragraph 5 of the answer corrected by permitting the defendant to testify in support of his defense set up therein, before the court directed the verdict for the plaintiff. The admission of testimony in support of a defense, after the portion of the answer containing the defense had been stricken, amounted to nothing, as the testimony was then without pleading to support it. Testimony not based upon pleading could not have availed the defendant anything, as a charge of the court (if the case had been submitted to the jury) on a defense which had been stricken would not have been appropriate. Martin v. Nichols, 127 Ga. 705 ( 56 S.E. 995); Cordele Sash, Door Lumber Co. v. Wilson Lumber Co., 129 Ga. 290 ( 58 S.E. 860); Hewitt v. Lamb, 130 Ga. 709 ( 61 S.E. 716, 14 Ann. Cas. 800); McLean v. Mann, 148 Ga. 114 ( 95 S.E. 985); City of Brunswick v. Glogauer, 158 Ga. 792 ( 124 S.E. 787); York v. Stonecypher, 181 Ga. 435 ( 182 S.E. 605).
3. In their answer the defendants admitted that the quitclaim deed dated September 25, 1925, was recorded on September 27, 1925; but they alleged that none of them had knowledge that such deed was in existence, or on record, until after the filing of the instant suit in August 1941. They alleged further that they had in good faith placed building improvements upon the property; and they prayed, should the quitclaim deed be held valid, that they be allowed to recover for the permanent improvements so placed. "In all actions for the recovery of land, the defendant who has bona fide possession of such land under adverse claim of title may set off the value of all permanent improvements bona fide placed thereon by himself or other bona fide claimants under whom he claims; and in case the legal title to the land is found to be in the plaintiff, if the value of such improvements at the time of the trial exceeds the mesne profits, the jury may render a verdict in favor of the plaintiff for the land and in favor of the defendant for the amount of the excess of the value of the improvements over the mesne profits." Code, § 33-107. It is insisted that the defendants are estopped, because of constructive notice afforded by record of the quitclaim deed. In Harper v. Durden, 177 Ga. 216 ( 170 S.E. 45), this court held: "The court did not err in submitting to the jury the question whether under the evidence the defendant could set off the value of permanent improvements as provided in" the Code, § 33-107. It was said: "Constructive notice is evidence, as a matter of course. In a contest between deeds involving merely title, it would be conclusive. [Citing the Code, § 29-401] However, that Code section does not purport to deal with the question of bona fides where an occupant of land is seeking to set off permanent improvements. The burden on this question is on the party asserting notice. . . We hold that the record of the deed afforded constructive notice, which is relevant evidence, and, though conclusive on the matter of title, was not necessarily conclusive on the question of good faith." See generally Norris v. Richardson, 151 Ga. 31 (2) ( 105 S.E. 493); Walton v. Sikes, 165 Ga. 422 (14) ( 141 S.E. 188); Burden v. Gates, 188 Ga. 284 ( 3 S.E.2d 679); Tennessee, Alabama Georgia Railway Co. v. Zugar, 193 Ga. 386, 389 ( 18 S.E.2d 758). Under the pleadings in the instant case the court erred in refusing to submit to the jury the question whether under the evidence the defendant could set off the value of permanent improvements, as provided in § 33-107.
4. While it appears from the record that the Georgia Minerals Company, on October 18, 1923, executed a deed to B. W. Newsom to the land in question together with other lands, and that Newsom in turn executed to that company a security deed conveying the same property on October 23, 1923, and that this security deed had been assigned by that company to another person, still, when these deeds were introduced in evidence it was stipulated, in reference to the deed from the Georgia Minerals Company to B. W. Newsom: "This deed being introduced simply to show that the land involved in the suit was a part of the land included in the receivership, although plaintiff was not relying on this deed as any basis of his right, but was claiming the full right under the deed from Drew G. McKaig." Under such circumstances only the rights of the parties under the quitclaim deed from McKaig to Newsom were involved.
5. Applying the rulings announced above, there were issues of fact that should have been submitted to the jury. The court erred in directing the verdict in favor of the plaintiff.
Judgment reversed. All the Justices concur, except
In Threlkeld v. Dobbins, 45 Ga. 144, 146, it was said: "It is the duty of a defendant to state his case, and the court will not strain a point to make it out for him. We take it for granted he has gone as far in his statement as his conscience will let him; and so treating his plea, we think the court was right in striking it." The foregoing is but an application of the recognized rule that pleadings are to be construed most strongly against the pleader. In Doyal v. Russell, 183 Ga. 518 (3, 4), 534 ( 189 S.E. 32), it was held that where pleadings are ambiguous or couched in alternative expressions, on demurrer they will be given that construction which is most unfavorable to the pleader. The pleading there referred to alleged that the defendant would illegally pay out funds under a proclamation or otherwise in violation of law, unless restrained. In the opinion, in discussing this alternative allegation, it was said: "Where any one of several averments alleged in the alternative is insufficient, the entire pleading is rendered bad. In other words, where two matters are pleaded in the disjunctive, one of which is good and the other not, the petition is treated as pleading no more than the latter, because it must be construed most strongly against the pleader." The cases there cited amply support the quoted ruling. In Ellis v. Lockett, 100 Ga. 719 ( 28 S.E. 452), the suit was by the vendor for the purchase-money of land. The defendant attempted to set up as a defense by special plea that the vendor's title was bad; and it was said, that as "the pleas in question did not by their allegations affirmatively show such want of title, there was no error in striking them on demurrer." I think the foregoing decisions, which are in harmony with countless other decisions of this court, make it clear that a defendant's plea, when construed on demurrer, can never legally be construed more favorably to the defendant than its language expresses. I think it means also that facts more favorable to the defendant's case than those pleaded do not exist; otherwise in the interest of his case the defendant would have alleged them.
Division 1 of the majority opinion reverses the judgment which sustained the plaintiff's demurrer to paragraph 5 of the amended plea. This paragraph details circumstances which might be sufficient in law to relieve the defendant from any act committed by him while in the condition there described; but the defendant was unwilling to allege that he executed the deed here involved while in that condition. The deed is dated September 25. Paragraph 5 of the plea alleges that on or about September 25 the transactions there recited took place. Under the ruling in Doyal v. Russell, supra, this alternative allegation must be construed to mean, not that on September 25, but about September 25, such matters transpired. In the nearest approach to an allegation that the deed was executed in the circumstances there recited it is alleged that "during this time he may have signed such deed." This statement, under the rule, means no more than that the defendant may have but did not sign the deed during the time there referred to; and hence paragraph 5 constituted no defense and no valid attack upon the deed in question, and it was properly stricken on demurrer. Since the entire case turned upon the validity of that deed, and since the defendant does not deny the execution of the deed, it was not error for the court to direct the verdict in favor of the plaintiff.
Of course, the plea of the defendant recites a number of facts which strongly indicate that he held possession of the premises in good faith, and the plea asserts that he did not know of the existence of the deed until this suit was brought; but these circumstances and this assertion were conclusively answered by the existence of the deed, properly executed and signed by the defendant, in the absence of a showing that the deed was for some legal reason invalid.