Opinion
16586.
APRIL 14, 1949.
Cancellation. Before Judge Moore. Fulton Superior Court. December 27, 1948.
Claud F. Brackett and R. B. Pullen, for plaintiffs in error.
Frank Grizzard and Frank Morrison, contra.
1. Where the consideration recited in a deed is "one dollar, furnishing grantor a home, food, medicine, doctor's bills, hospital bills, burial expenses and all the other necessities of life during grantor's lifetime," and the grantee has failed and refused to furnish the grantor the specified items, ordinarily the remedy of the grantor would be an action for damages. Code, § 85-902; Brinson v. Hester, 185 Ga. 761, 762 ( 196 S.E. 412).
(a) The grantor may maintain an equitable action to rescind the contract if the grantee is insolvent ( Lindsey v. Lindsey, 62 Ga. 546; Wyatt v. Nailer, 153 Ga. 72 (4), 111 S.E. 419; Fletcher v. Fletcher, 158 Ga. 899, 124 S.E. 722; Burkhalter v. DeLoach, 171 Ga. 384, 155 S.E. 513); or where fraud is employed by the grantee in the procurement of the deed, or there are other special facts which would make rescission by the grantor an appropriate relief. Wood v. Owens, 133 Ga. 751, 752 (3) ( 66 S.E. 951); Morris v. Fain, 165 Ga. 879, 881 ( 142 S.E. 119).
2. An allegation that the defendants are insolvent is not a conclusion of the pleader, but an allegation of an ultimate fact. Schneider v. Smith, 189 Ga. 704, 706 (5) ( 7 S.E.2d 76). The allegation in this case, that "the defendants have not sufficient property above their homestead exemptions of realty and personality allowed by existing laws to respond to the recovery in any judgment that petitioner may obtain against them in this behalf," is insufficient to allege insolvency of the defendants.
3. Since the petition does not allege insolvency, and no special facts are pleaded to entitle the grantor to the relief of cancellation, the court erred in overruling the general demurrer to the petition.
Judgment reversed. All the Justice concur.