Opinion
20635.
ARGUED SEPTEMBER 16, 1959.
DECIDED OCTOBER 9, 1959.
Cancellation. Franklin Superior Court. Before Judge Cobb from Western Circuit. July 6, 1959.
J. T. Sisk, for plaintiffs in error.
A. S. Skelton, Marshall L. Allison, contra.
The judgment of the trial court sustaining a general demurrer to the petition in this case was not error for any reason assigned.
ARGUED SEPTEMBER 16, 1959 — DECIDED OCTOBER 9, 1959.
Mrs. Dock Bailey, Rosa Lee Hicks, Laura Bailey Freeman, Beverly Bailey, Mrs. Inez Bailey Holden, Mrs. Billie Dean Bailey Hembree, Mrs. Jo Ann Prickett, and Mrs. Betty Sue Bailey Crump filed their suit in equity against W. Morgan Williams, Jr., administrator of the estate of W. Morgan Williams, Sr., and Thomas Irwin. The allegations of the petition were in substance: that on June 8, 1956, the plaintiffs signed a deed conveying to Thomas Irwin their undivided interest in described land; that thereafter Thomas Irwin conveyed a one-half undivided interest in said land to W. Morgan Williams, Sr.; that partitioning proceedings are pending involving said land, to which the petitioners are not parties and of which they received no notice; that Rosa Lee Hicks is a minor; that Mrs. Billie Dean Bailey did not sign her name to the deed, and her name was not signed by anyone in her presence. It was alleged that the money received by the plaintiffs above named had been tendered to the above-named defendants. The petition further alleges as follows: "That plaintiffs were totally unfamiliar with said tract of land and did not actually know where said land was located, and had never been on it or seen it; that plaintiff Mrs. Dock Bailey is the widow of Dock Bailey, and the remaining plaintiffs are their children; that all of them were born and raised on the farm and all have limited education; that none of them are familiar with transactions involving the values and conveyance of real estate and timber lands; that none of them have had business experience of any consequence, and that there is a decided and great disparity of mental ability in contracting a bargain as compared with that of the defendants in this case, all of which was well known to the defendants in this case at the time.'
"That plaintiffs received for their interest in said land the total sum of four hundred ($400) dollars, coupled with the agreement on the part of the defendants that they would pay the past due taxes chargeable to their one-eighth interest in the above tract of land. The defendants then and there represented to the plaintiffs that the others interested in said property had agreed to sell their interest in this amount. Plaintiffs further say that as a matter of fact, the defendants were businessmen, familiar with the value of real estate and timber lands, such as plaintiffs have since found this tract of land to be, and they had inspected said land and knew that it was solidly covered with merchantable saw timber and pulpwood and that it was worth many times what they paid plaintiffs, and plaintiffs were deceived and defrauded thereby and were overreached in said matter, the defendants knowing and plaintiffs being unaware of the value of said land, heavily timbered as it was, was well worth over twenty thousand ($20,000) dollars."
The prayers of the petition were that the partitioning proceedings be enjoined; that the deed executed by the plaintiffs be canceled; and that the plaintiffs have damages and general relief. A general demurrer to the petition was sustained as to all the plaintiffs except Rosa Lee Hicks and Mrs. Billie Dean Bailey, and the temporary restraining order as to the partitioning proceeding was dissolved except as to the above-named two plaintiffs. These two plaintiffs are not parties in this court. The exception here is to the judgment sustaining the general demurrer and dissolving the temporary restraining order.
1. It is insisted by the plaintiffs in error that the deed should be canceled by virtue of Code § 37-710, which reads as follows: "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." It will be noted that, before it is applicable the Code section requires great inadequacy of consideration joined with great disparity of mental ability. It follows, therefore, that both must exist. The law is well settled in this State to the effect that, in construing a pleading as against a general demurrer, it will be construed most strongly against the pleader, and that the petition must allege the ultimate facts necessary to constitute a cause of action. See Guardian Life Ins. Co. of America v. McMichael, 74 Ga. App, 53 ( 38 S.E.2d 689).
The law recognizes that there is "some disparity of mental ability between all persons who deal with each other," and "weakness of mind not amounting to imbecility is not sufficient mental incapacity to justify setting aside a deed." Sheppard v. Broome, 214 Ga. 659 ( 107 S.E.2d 219), and cases there cited. It is likewise settled law that he who can read must read. In the instant case, there is no allegation of a confidential relationship, extreme age, mental weakness, or similar fact that would relieve the plaintiffs in error from ascertaining the facts alleged before the deed was signed. It is alleged that the facts upon which it is sought to have the deed canceled were not known until after the execution of the deed. It is difficult to understand why these facts could not have been discovered just as well before the execution of the deed as after. It is well-settled law that equity will grant no relief to one who by the exercise of ordinary diligence could have prevented the injury complained of. Equity requires diligence in the protection of one's own rights and equity favors the diligent and not those who sleep on their rights. See Phillips v. Hayes, 212 Ga. 148 ( 91 S.E.2d 19), and cases there cited. Applying the above principles of law to the allegations of the petition in this case, the general demurrer was properly sustained as to the plaintiffs in error.
2. It is insisted that, because of the allegation to the effect that one of the grantors was a minor and that another did not sign the deed, the general demurrer should not have been sustained as to the other plaintiffs in error for the reason that, if these allegations should be sustained, the deed would be void as to all grantors. There is no merit in this contention. We know of no reason why the deed as to those who were acting under no disability, and who admittedly signed the deed, should not be binding and valid as to their interest in the land, and none has been called to our attention.
3. It is insisted that the deed to Thomas Irwin is not valid for the reason same was witnessed by W. Morgan Williams, who five days thereafter received from Thomas Irwin a deed to a one-half undivided interest in the property. There is no merit in this contention. In the first place, the fact that Williams at a later date was deeded an interest in the property would in no way disqualify him as a witness to the deed. In the next place, the deed, as between the parties, if otherwise valid, would not be invalid if it was not witnessed by anyone.
4. It follows, the judgment under review was not error for any reason assigned.
Judgment affirmed. All the Justices concur.