Smith v. Rogers

Lumpkin, J.,

dissenting. I can not concur in the judgment rendered in -this case. Some of -the allegations in the petition may appear rather improbable, but they are not impossible, and can not be declared untrue on demurrer. Accepting them as true, the case is made of a sick woman, practically an invalid for years, unfamiliar with business and having confidence in her kinsmen, and of a brother-in-law and two cousins, who, knowing these facts, deliberately conspired to defraud her out of her land, and succeeded in consummating the conspiracy. One of-them obtained her signature to a deed under pretense of merely seeing which wrote the better hand. Another obtained her signature to a deed to another part of the same general tract of land under pretense that it was a lease of the land to him. The three shared the results of the conspiracy, either in land or timber. Sickness alone may not disqualify one from making a contract, unless it impairs the faculties beyond the power to contract; but illness, lack of business knowledge, and confidence in relatives may affect the question of what constitutes negligence under given circumstances. It can not be said as matter of law that an invalid woman must suspect her brother-in-law and cousins of being knaves seeking to defraud her, at the risk of forfeiting the aid of a court of equity. Mere negligent signing of a paper without reading it, and without fraud by the other party, or emergency, or other sufficient reason, prevents relief; but what is negligence depends on the facts of the ease, and I do not think it can be declared that this woman was, as matter of law, so negligent as to bar her. If the case can stand as to either paper, it is not demurrable as a whole. Her reasons for delay in discovering the fraud and bringing the suit can not be declared insufficient on demurrer. I am authorized to state that Evans, P. J., concurs in this dissent.