Opinion
17863.
ARGUED MAY 13, 1952.
DECIDED JUNE 10, 1952.
Cancellation. Before Judge Whitman. Fulton Superior Court. March 6, 1952.
Louis A. Burton, for plaintiff in error.
Norman H. Fudge and Frank D. Foster, contra.
1. Where a deed is made in consideration of support for life, the redress is an action for the value of the support withheld, or an equitable action to rescind if the special facts, such as fraud or insolvency, would make the latter the appropriate relief. Lindsey v. Lindsey, 62 Ga. 546; McCardle v. Kennedy, 92 Ga. 198 ( 17 S.E. 1001); Wood v. Owen, 133 Ga. 751 (3) ( 66 S.E. 951); House v. House, 191 Ga. 678 ( 13 S.E.2d 817); Dumas v. Dumas, 205 Ga. 238 (1) ( 52 S.E.2d 845).
2. Where the consideration of a deed is a promise by the grantee to support the grantor, a breach by the grantee does not constitute fraud, so as to authorize cancellation, unless the promise was made with the present intention of the grantee not to comply with it. A mere failure to comply would be insufficient to establish a fraudulent intent. Brinson v. Hester, 185 Ga. 761 (1) ( 196 S.E. 412), and citations.
While the petition alleged that the grantee was insolvent, but further alleged that she would not be able to respond in damages except by virtue of holding the deed to the described property, the value alleged being $5000, this was not an unqualified allegation of insolvency, as property conveyed by a deed sought to be canceled should be considered as property of the grantee in determining whether he is insolvent. Schneider v. Smith, 189 Ga. 704 (6) ( 7 S.E.2d 76).
Judgment affirmed. All the Justices concur.
No. 17863. ARGUED MAY 13, 1952 — DECIDED JUNE 10, 1952.
Susie E. Bolton filed a petition against her niece, Evelyn Morris, asserting that she executed to defendant a deed to a described house and lot on November 22, 1948, conditioned as follows: "That said grantee shall care for the grantor for and during her natural life and see to it that she shall not suffer for the necessaries of life; that the grantor reserves the right to occupy and use said premises for and during her natural life jointly with the grantee and grantee's husband Lucius E. Morris; that the grantee shall pay all taxes, assessments, insurance, and shall keep the said property adequately insured against loss by fire and shall keep the same in a good and habitable condition suitable for occupancy as a dwelling place." She alleged that defendant had failed and refused to comply with the terms and conditions of the deed, which was the consideration for its execution. She made the general allegation that defendant was insolvent, and further alleged that she would not be able to respond in damages except by virtue of holding the deed to the property described, the value alleged being $5000. She alleged that defendant's failure to comply with the conditions of the deed was a fraud, but did not allege that the original intention of grantee in procuring the deed was fraudulent. She alleged that she had no adequate remedy at law, and prayed for cancellation, and that defendant be enjoined from molesting her in the enjoyment and possession of the property.
A general demurrer to the petition was sustained, and the exception is to that order.