Opinion
17156.
JULY 12, 1950.
Cancellation. Before Judge Crow. Grady Superior Court. March 20, 1950.
G. L. Worthy and Ira Carlisle, for plaintiff in error.
Bell Baker, contra.
There being evidence to show that the instruments here sought to be canceled were conveyances of property by the deceased husband of the petitioner to the defendant just ten days before his death, which was caused by cancer of the liver, that he was "technically or medically insane" as a result of his ailment at the time of the transfer, that the consideration for the two conveyances being one dollar and the defendant's obligation to care for the maker, with whose physical and mental condition she was familiar, and the property conveyed being obviously worth several hundred dollars, and that the defendant and her husband who acted as her agent exerted undue influence upon the deceased to secure the execution of said conveyances — the verdict of the jury in favor of the petitioner was authorized.
No. 17156. JULY 12, 1950.
This is a suit by Beulah Norwood against Irene Norwood, praying for the cancellation of a transfer of a security deed and note in the principal amount of $1290, secured thereby, which deed and note were made to Clarence Norwood, the husband of the petitioner, and the transfer was by him to the defendant, his mother. The petition also prayed for the cancellation of a bill of sale, executed at the same time by Clarence Norwood to the defendant, conveying prescribed personal property. The cancellations were sought upon the alleged grounds of (1) mental incapacity of the maker at the time of transfer, (2) gross inadequacy of consideration and great mental disparity between the parties, and (3) undue influence exerted upon Clarence Norwood by the defendant and her husband and agent, Owen Norwood, which was effective due to the extreme physical and mental weakness of Clarence Norwood, who had been suffering for more than a year with cancer of the liver from which he died ten days after the instruments were executed.
The demurrers, both general and special, to the petition as amended were overruled and exceptions pendente lite were duly filed. The case then proceeded to a trial, which resulted in a verdict for the petitioner. The defendant then filed a motion for new trial which was later amended by adding five special grounds, which were exceptions to the following: (1) a charge on undue influence, error being assigned because there was no evidence to authorize it; (2) a charge on fraud because of the inadequacy of consideration and mental disparity, error because there was no evidence to authorize it; (3) a charge on legal fraud giving the substance of Code § 37-703, error because there was no evidence to authorize it; (4) the same complaint as in (2) above; and (5) a charge that, if there was no disparity of mental ability, cancellation would not be authorized, the grounds of complaint being that the charge was misleading and confusing.
The substance of the evidence, material to a decision is as follows: Clarence Norwood, the maker of the instruments sought to be canceled, was the husband of the petitioner and the son of the defendant and Owen Norwood. He had been ill for more than a year, during which time he was treated by a number of physicians who testified at the trial that his ailment was cancer of the stomach and liver. There was some testimony of physicians that he suffered intense pain; that it was necessary for him to take opiates to ease the pain; and that the cause of his death was cancer of the liver. During his illness, with the exception of the last ten days before his death, the petitioner nursed him, sat up with him, and took care of him. He was so weakened and helpless that she had to feed him and, being unable to control his bowels, it was necessary for her to keep diapers on him.
The petitioner testified as follows: Owen Norwood decided to take Clarence to a "root doctor," and she hired an ambulance in which she and the father, Owen, took Clarence to see the doctor. This person said that they had let Clarence get in an incurable condition and that he had been poisoned, and he gave them some medicine to give Clarence. When they returned home Owen had the mattress on which Clarence had been lying carried out of the house, cut to pieces, and a search made for poison; the petitioner then purchased a new one. Owen then spent the night there and repeatedly accused the petitioner, in the presence of her husband, of poisoning him, which she denied and her husband said at the time that he did not believe. The next day Owen announced that he intended to carry Clarence to his house where his parents could take care of him, and both she and Clarence did not want him to be moved. However, Owen made arrangements and carried him to his home approximately ten or twelve days before the death of Clarence, and when she saw that they meant to carry him away she prepared his clothes and gave Owen $208 in cash with which to pay expenses. The next day after Clarence was moved, Owen returned to the petitioner's home and demanded that she deliver to him the property involved in this suit, and upon her refusal he advanced on her making threats, and she fled. The father, Owen, then sued out a possessory warrant, describing himself as agent of Clarence Norwood, and the petitioner procured a peace warrant against him; and, upon the trial of the same, Owen was required to give a bond to keep the peace. The possessory warrant was abandoned and, on the same day, the transfer and conveyances herein attacked were executed and dated, being September 21, 1946.
Dr. Griffin, a physician who had attended Clarence and treated him, saw Clarence on September 24, 1946, and Clarence told him that the petitioner had poisoned him and had given him food to hurt him. Dr. Griffin also testified that from his knowledge of the history of Clarence's ailment and from his observation of him he was "technically or medically insane," and his mind had been unsound since March, 1946.
Both Owen and the defendant were sworn and testified as witnesses at the trial, the defendant testifying that she personally paid the deceased $1 in currency for the bill of sale and $1 in currency for the transfer of the security deed and note, and that the remainder of the consideration for these conveyances was her obligation to take care of him. Owen stated that he had arranged for the preparation and execution of the instruments here sought to be canceled.
The exceptions here are to the judgment overruling the defendant's motion for new trial as amended, and error is also assigned upon the judgment overruling the defendant's demurrers to the amended petition.
While, by general and special demurrers to the petition as amended and by the general and special grounds of the motion for new trial, there appears to be presented for decision a large number of questions of law, yet a decision sustaining the verdict against the general grounds of the motion for new trial will be decisive and controlling on all other questions except the rulings on the special demurrers, and our examination discloses no error in those rulings. If the evidence is held to have authorized the verdict of the jury upon both or either of the two grounds of attack upon the conveyances that were submitted to the jury, then the general grounds are without merit. Although cancellation was sought upon three grounds, to wit, (1) mental incapacity, (2) gross inadequacy of consideration and great mental disparity, and (3) undue influence, the judge expressly withdrew from the jury the question of mental incapacity, thus leaving only two grounds upon which relief was sought.
As to inadequacy of consideration, the evidence was sufficient to warrant the jury in finding that the consideration was grossly inadequate. Although the value of the personal property conveyed is not shown by the evidence, its description shows that it has substantial value. It consists of an electric fan, a shotgun, and electric spray gun and transformer, and a note dated October 1, 1945, for $1290 payable $15 per month, to Clarence Norwood and signed by R. P. Poole and his wife, which was secured by a deed to a house and lot in the City of Cairo. The deed and note were for the purchase-money for the house and lot which Clarence Norwood sold to the grantors of the deed and the makers of the note, the house having been built by Clarence and finished when he came home from Cleveland, which was a little over a year before Clarence died. The maker of the note testified that he made a monthly payment on the note to Clarence about a month before he died, and Clarence told him to make the payments to his wife if he died.
While there is no testimony as to the exact value of this property, the jury could compare its value to the value of the claimed consideration of $2 and the promise to care for Clarence and find "gross inadequacy of consideration." There was evidence that the petitioner gave Owen Norwood $208 in cash when Clarence was moved to the home of his parents, which was about two weeks before his death, and the jury could find that this more than took care of him. They could have discredited the testimony of the payment of $2 to Clarence, because, in his condition, he was unable to handle it and had no need whatsoever for it if his mother was to take care of him. There was no evidence to show the value of any services rendered by the mother in taking care of the deceased, but the overwhelming evidence shows that at the time of these conveyances all parties concerned knew that Clarence was seriously ill with an incurable ailment and that life could not last for any appreciable time. It was the right and duty of the jury to give consideration to such circumstances, and they were authorized to thereby conclude that the consideration was grossly inadequate.
But does the evidence show great mental disparity? Counsel for the defendant in contending that the evidence failed to show mental disparity cites and relies upon Lunsford v. Armour, 194 Ga. 53 ( 20 S.E.2d 594). There it was held that, in the absence of evidence showing the mentality of the parties, the jury could not find great mental disparity. The grantor there was approximately 90 years old; the grantee, being 20 years younger, was approximately 70 years of age. The only evidence touching their mentality related to the grantor and showed that she was of sound mind, her mind weakening as she grew older. But just how weak was not shown, and assuming, as the law does, that the grantee was sane, it could not be found from the evidence that there was great mental disparity. Here we have the testimony of Dr. Griffin that the maker of the instrument sought to be canceled was "technically or medically insane," and that his disease rendered his mind unsound. Certainly it can be said that, where the maker was insane and the other party sane, there would be great mental disparity. While there was no testimony upon the trial of this case describing the mentality of the defendant, the law presumes her to be sane. Huff v. Huff, 41 Ga. 696, 705; Holcombe v. State, 5 Ga. App. 47 ( 62 S.E. 647); 20 Am.Jur. 207, 213, §§ 209, 215. The jury had opportunity to confirm this presumption of law by the appearance of the defendant and her husband as witnesses upon the trial, and, under the law, the jury was authorized to consider such evidence. Mitchell v. State, 110 Ga. 272 ( 34 S.E. 576). Although in Lunsford v. Armour, supra, the jury had opportunity to observe the grantee who appeared as a witness, as pointed out above, when treating that grantee as sane there was still no evidence from which the jury could have found great mental disparity. While, here, the difference in mental capacity was as wide as the distance from sanity to insanity. Therefore, the evidence was sufficient to authorize the verdict in favor of the plaintiff upon this ground. Code, § 37-710. This being a transaction between parent and child, the law requires such a conveyance to be closely scrutinized, and, upon proof of slight fraud, the conveyance might be canceled. Head v. Holcombe, 158 Ga. 94 ( 123 S.E. 107).
While the foregoing ruling would sustain the verdict against the general grounds of the motion for new trial, in view of the special grounds which relate to the evidence, it is thought appropriate that we rule upon whether or not the evidence authorized a finding that the conveyances resulted from undue influence as charged in the petition. On this phase of the case, it is very significant that, while at home in the presence of his wife, the deceased told his father that he did not believe the accusation that she poisoned him and he did not want to be removed from his home, yet, within four or five days after he had been placed in the exclusive custody of the defendant and her husband, he told Dr. Griffin that his wife had poisoned him and had given him food that hurt him. This complete change of attitude was brought about in some manner, since it was not in harmony with the position previously taken in the presence of the defendant's husband and the petitioner. It was likewise significant that, immediately after the deceased was carried to the defendant's home, her husband and agent became so interested in acquiring possession of the property here involved that he threatened to attack the petitioner for refusing to give him possession, resorted to legal process in an attempt to secure possession, and conducted himself in such a manner in his efforts to gain possession that a court, after a hearing, judged it necessary to require him to make a peace bond; and, on the same day, this sick and dying husband of the petitioner conveyed all of his property to the defendant, thereby divesting his wife, who had cared for him through many months, of all interest in his property. The evidence was sufficient to authorize the jury to find that the instruments here sought to be canceled resulted from undue influence and to return a verdict in favor of the petitioner. See Code, § 37-703; Stanley v. Stanley, 179 Ga. 135 ( 175 S.E. 496).
This ruling, that the evidence which proves the material allegations of the petition is sufficient to support the verdict for the petitioner, is the equivalent of ruling that such allegations were enough to entitle the petitioner to the relief sought. It follows, therefore, that the court did not err in overruling the general demurrer. It also requires a ruling that each of the amended grounds of the motion, complaining of excerpts from the charge submitting those material issues to the jury upon the ground that there was no evidence to authorize such charges, is without merit.
For the reasons stated above, the court did not err in overruling the demurrers to the petition nor in overruling the motion for new trial as amended.
Judgment affirmed. All the Justices concur.