A, B, and C were widow, son, and daughter respectively of E, deceased, and as sole heirs at law were tenants in common of described realty. E was the husband of C. E formed a scheme to get the interest of B, who was of feeble mentality, and on account of the relationship between them was under the influence of E, to whom B was accustomed to look for guidance in business matters. The scheme was carried out as follows: Under direction of E a deed was executed by B and C to A, conveying to the latter their respective interests in the land. At the same time A executed to B a deed which reserved a life-estate to the grantor in the whole property and conveyed a life-estate in the whole property to B, to take effect at the death of A, and a remainder estate in fee in the whole property to C after death of B. On the same day A executed a security deed purporting to secure a note of $7000, the estimated value of one third interest in the entire property, to C. No money was passed between any of the parties at any time. The deed purported to describe a note from A to C for the amount above stated, to mature at a named date. The deed contained *90a power of sale to the grantee, her heirs and assigns, and authorized them to become purchasers at the sale. Within a few months after the date of the deed 0 died intestate, leaving as her only heirs at law F and named children. A continued in possession of the property. The date expired for maturity of the alleged note, but no move was made to foreclose the security deed. About two years thereafter A died in testate, and no administration 'was ever sued out upon her estate. Shortly after A died, F obtained letters of administration upon the estate of 0, and in the absence of B, who was on a visit in another part of the State, exercised as administrator the power of public sale contained in the deed, and himself became the purchaser. Shortly after the sale B instituted an action against F individually and as administrator upon the estate of 0, and the children of C and F, seeking to set aside as fraudulent and void all of the conveyances above mentioned, and for partition between B and the heirs of C as tenants in common, and for injunction to prevent F from cutting the timber. The petition alleged facts substantially as above indicated. A demurrer on general and special grounds and an answer to the petition were filed. At an interlocutory hearing the judge granted a temporary injunction. On writ of error the judgment was reversed. Slade v. Raines, 161 Ga. 859 (132 S. E. 58). After that decision by this court the petition was amended by striking so much of the petition and prayers as sought to have declared void all of the said deeds, and substituting in lieu thereof allegations and prayers that, upon the same grounds of attack as indicated above, “the said security deed” and the sale thereunder be declared void “as to this petitioner,” and that his right to a life-estate in all the property be established in accordance with stated representations to him to that effect made by F at the time F was having the deeds prepared. The demurrer was overruled. A verdict for the plaintiff was returned. The defendants moved for a new trial, which was refused. The defendants excepted to both rulings just stated. Held:
1. The petition alleged a fraudulent scheme upon the part of F to acquire the interest of B in the land, which included, among other things, fraudulent procurement of the security deed and a sale and purchase by him under the powers therein expressed.
2. B could recognize his deed to his mother, A, and accept the conveyance by her to him of a life-estate as therein provided for him, and at the same time attack as fraudulent the security deed to F and the sale under that deed to himself.
3. The petition was sufficient to set forth a cause of action for setting aside the security deed and the sale thereunder.
4. The court did not err in overruling the demurrer to the petition as twice amended, upon any of the grounds stated. Beck, P. J., and Hines, J., dissent from the foregoing rulings.
5. One ground of the motion for new trial complains of the admission of testimony by the plaintiff [B], that “Mr. Slade [F] wanted to compromise with me, and said he would give me the Bundrick place if I would agree to let him have the home place; and I told him that I could not do that, because that was where I was born and raised, and I wanted to live there,” over the objection that it tended to show a *91proposition made with a view to a compromise. Held, that this evidence was inadmissible for the reason stated. Civil Code (1910), § 5781.
No. 5695. September 13, 1927. On rehearing, October 1, 1927. Pearson Ellis and A. 8. Bussey, for plaintiffs in error. Whipple & McKenzie, contra.6. Under a proper construction of the pleadings, it was error to charge the jury that “By amendment made by the plaintiff to his petition the case now proceeds in the name of W. M. Raines against J. O. Slade individually.”
7. In several grounds of the motion for new tidal complaint^ is made of portions of the charge of the court. None of the grounds contain propositions of such a character as to require special elaboration, and none of them require the grant of a new trial. Beck, P. J., and Hines, J., dissent in so far as this ruling applies to the tenth ground.
8. As the case is remanded for a new trial, no ruling is made as to the sufficiency of the evidence.
Judgment reversed.
All the Justices concur, except as shown in headmote 7, and except Hill, J., absent.