1. "'Where a deed, regular on its face, is attacked as invalid, the burden of proof rests on the person making such attack to establish the invalidity.’ . . 'In a suit to recover land and to cancel a deed as a cloud upon the plaintiff’s title, the burden is upon the plaintiff to make out such case as entitles him to the relief sought.’” Arrington v. Thompson, 211 Ga. 734, 737 (88 SE2d 402) and cit. The evidence shows that the property in question was conveyed to the mother prior to her husband’s death, by deeds of purchase regular on their face, by her husband and by her daughter, plaintiff Herring. The validity of said deeds is not attacked or attempted to be set aside by the pleadings, although plaintiff Herring testified that no consideration was in fact paid for them. Mrs. Herring is estopped from denying her right to sell and convey the land in question to her mother (Code § 29-111) and she testified that, after the deeds were executed, her mother possessed and operated the farm and was the legal owner as far as the witness knew. Therefore, the mother had fee simple title to
The sole evidence adduced regarding the mother’s competency to convey the property in question was that she was 64 or 65 years old at the time of her husband’s death in 1951 and that the deeds sought to be set aside were executed in the years 1952, 1962 and 1966. Her age alone is not sufficient to show that she was non compos mentis, or entirely without understanding, which is required to establish incapacity in a grantor. See Higgins v. Trentham, 186 Ga. 264, 267 (197 SE 862). Nor was there any such evidence of the mother’s weak mentality and the grantees’ dominant position as would raise a presumption of undue influence. See Parker v. Spurlin, 227 Ga. 183, 187 (179 SE2d 251) and cit. Fraud may not be presumed. Code §37-706. There is no evidence that the deeds were without consideration, in which case the stated consideration is presumed to have been paid. Lunsford v. Armour, 194 Ga. 53 (2) (20 SE2d 594). Furthermore, the grantor mother ratified these deeds, including the issue of consideration, in her verified defensive pleadings.
2. Enumerated as error is the court’s sustaining of the appellees’ motion to strike from the pleadings all reference to the will of V. F. Darden. It is not clear from the record that such motion was in fact sustained, since evidence as to the will was later admitted. If such ruling was made, however, it was not error, since, as is held hereinabove, the evidence showed that the testator did not own the title to the land in question at the time of his death, making the provisions in the will for distribution of that land irrelevant.
3. Pretermitting the question of whether or not the plaintiffs’ amendment to their complaint was ever properly and legally admitted into the pleadings, the alleged agreement, insofar as it appears from the evidence, does not provide a basis for the relief sought by the plaintiffs. As we have already held hereinabove, the title to the land in question was in the mother, Mrs. V. F. Darden. Such an agreement alone cannot convey property in this
The evidence adduced by the plaintiffs failed to support their claim for relief; therefore, the court did not err in directing a verdict for the defendants or in any other ruling enumerated as error.
Judgment affirmed.