Opinion
15170.
JUNE 6, 1945.
Injunction, etc. Before Judge Humphrey. Toombs superior court. January 27, 1945.
H. H. Elders, for plaintiffs in error.
Chalmers Chapman, contra.
No error was committed in directing a verdict for the plaintiff as to title to the land, since it was sought to cancel the plaintiff's deed, made upon a consideration of the plaintiff's supporting the grantor during her lifetime, and there was no evidence proving insolvency, or other special facts, which would entitle the defendant to a verdict divesting the plaintiff of title to the property because of nonsupport of the grantor in the deed.
No. 15170. JUNE 6, 1945.
On July 26, 1937, Georgian Wilkes deeded certain land to R. W. Wilkes, the expressed consideration being $5, love and affection, and that the grantee care for and support the grantor during her lifetime. On December 10, 1938, Georgian Wilkes deeded the same property to J. F. Wilkes for an expressed consideration of the grantee's supporting the grantor during her natural life. On September 9, 1939, J. F. Wilkes made to R. W. Wilkes a quitclaim deed to the same property for a consideration of $1 and other valuable considerations. Subsequently, Georgian Wilkes, the grantor in the first two deeds, again deeded the same property to J. F. Wilkes for a consideration of $1, love and affection, and past and future support. After Georgian Wilkes's death, R. W. Wilkes filed a petition for injunction against J. F. Wilkes and his tenant, Jim Rudd, alleging ownership of the property, trespasses thereon, irreparable damages, and insolvency. The defendants answered, denying the material allegations of the petition, and alleging that the plaintiff had failed to support the grantor, Georgian Wilkes, and for that reason the consideration in the plaintiff's deeds had failed. On the trial, this case was combined with a previous suit against the plaintiff by the defendant J. F. Wilkes, seeking a cancellation of the deeds made to R. W. Wilkes. At the conclusion of the evidence, the court directed a verdict for the plaintiff as to the title to the land, and submitted all other issues to the jury, who found for the defendants. The defendants filed a motion for new trial, and this was amended by adding six grounds, which set out various actions of the court, but none of which complained of any error, except the last, which complained that the court erred in directing a verdict as to title because the issue was one of fact for the jury to pass upon. The motion for new trial was overruled. The defendants excepted to this judgment.
1. No error is complained of, except the direction of a verdict for the plaintiff as to title to the land in controversy, which was the main issue tried. The action of the trial court is probably sustainable on more than one theory. We rest our decision on one proposition only. The plaintiff proved his title. There was no issue as to the execution of his deeds. There was an issue as to whether he had complied with the covenant in his first deed, but there was no evidence whatever proving his insolvency.
Counsel for the plaintiffs in error recognizes the necessity of proof of insolvency in this case. In his brief he states: "If a party brings a suit to cancel a deed, or deeds, whose consideration is to support a party during his or her lifetime, and after said lifetime party is dead, and because the party bringing the suit has a title to said land, then he must allege said defendant party is insolvent. . . The only way we could show R. W. Wilkes was insolvent was by the certificate of the tax commissioner of Polk County, Florida, that R. W. Wilkes had never given any property in for taxes during the years he lived there. The court refused to allow this, and this was error." In the motion for new trial no error is complained of as to the exclusion of the evidence referred to by counsel.
In McCardle v. Kennedy, 92 Ga. 198 ( 17 S.E. 1001, 44 Am. St. R. 85), this court held: "Where a conveyance was made in consideration of support for life, the grantor had no right, without the consent of the grantee, to rescind the contract by a subsequent conveyance to another, merely because the support was withheld. She could not thereby defeat the first deed, her redress being an action for the value of the support withheld, or an equitable action to rescind if the special facts, such as insolvency, would made the latter the appropriate relief." See also Jones v. Reid, 184 Ga. 764, 767 ( 193 S.E. 235); House v. House, 191 Ga. 678, 679 ( 13 S.E.2d 817), and cit.; Wood v. Owen, 133 Ga. 751 (3) ( 66 S.E. 951); Self v. Billings, 139 Ga. 400 ( 77 S.E. 562); Wyatt v. Nailer, 153 Ga. 72 ( 111 S.E. 419). No insolvency, or other special facts, having been proved, which would entitle the principal defendant in the court below to a verdict divesting the plaintiff of title to the land, the court committed no error in directing a verdict for the plaintiff.
2. Other special grounds of the motion for new trial are incomplete, in that all of them merely set out certain actions of the trial court, but none complains of any error. They present no question for decision.
Judgment affirmed. Bell, C. J., Jenkins, P. J., Duckworth, and Atkinson, JJ., concur.