1. Upon the issue of duress and lack of consideration a finding against cancellation was demanded by the evidence, and this being true, the court did not err in directing the verdict complained of.
2. Unless the law of a case has been fixed by antecedent rulings, proof of allegations which do not state a cause of action will not authorize a recovery.
No. 16543. MARCH 15, 1949. Mrs. John S. Heard Sr. filed an equitable petition in the Superior Court of Fulton County, praying for the cancellation of a document in the form of a deed, which she had purportedly executed and delivered to Carl C. Heard during September, 1945; to vacate and set aside a judgment rendered by the Court of Ordinary of Fulton County on April 1, 1946, adjudging her to be a person of unsound mind; and for other relief. Carl C. Heard, Mrs. Leila H. Rouse, Mrs. Daniel May, and Mrs. Jewell E. Wade, four of her children, were named as defendants. There was no demurrer to the petition after it was amended. The allegations of the amended petition are substantially as follows: The plaintiff is eighty-five years of age, but of sound mind and mentally capable of owning, holding, and managing her estate. The defendants entered into a conspiracy with each other to fraudulently deprive her of the ownership and possession of her property, and as a result thereof they have wrongfully and illegally taken all of her property, real and personal. It was further alleged that because of threats of personal violence made to her by Carl C. Heard, one of the defendants, she conveyed to him, during September, 1945, certain valuable real estate for a recited consideration of "ten ($10.00) dollars and other good and valuable consideration." The consideration actually agreed upon was $2000 and a promise and an undertaking by the defendant, Carl C. Heard, to furnish the plaintiff with the necessities of life, but no part of the same was then or has since been paid.
It was further alleged that Carl C. Heard, while in conspiracy with the other defendants, caused a lunacy proceeding to be instituted against the plaintiff in the Court of Ordinary of Fulton *Page 892 County on March 21, 1946, wherein it was alleged that she was a person of unsound mind and incompetent to manage her affairs. The defendants, as a part of their fraudulent scheme to deprive the plaintiff of her property, falsely represented to the ordinary that the plaintiff's three nearest adult relatives were Mrs. Daniel May, Carl C. Heard, and Mrs. Jewell E. Wade, when in truth and in fact, the following in the order of their birth were her three nearest adult relatives, namely, Mrs. Leila Rouse, Mrs. W. H. Wade, and Carl C. Heard. Another attack made upon the validity of the lunacy proceeding was "that neither her son, L. H. Heard, nor his wife, who lived just across the street from petitioner, nor her other kinsman, Aubrey Thompson, nor his wife, who lived within a stone's throw of petitioner's residence knew of the pendency of said guardianship proceeding, or the secret and fraudulent acts of the defendants, and neither did any of the plaintiff's other children or members of her family, nor neighbors in the community in which she lived, know of the acts and proceedings, until afterwards." It was further alleged that the defendants knew, at the time the lunacy proceeding was instituted, that the plaintiff was a person of sound mind and fully able, capable, and competent to care for herself and manage her affairs.
The defendants filed answers in which they denied all of the substantial allegations of the petition.
Prior to the trial of this case, the plaintiff, Mrs. Heard, died testate, and Ralph H. Cannon as executor of her estate was made a party plaintiff.
The evidence is voluminous, covering about 150 pages, and much of it being immaterial, could have been omitted. We shall not undertake to set it out here, but in the opinion will point out such portions of it as may be necessary to decide the issues presented by the record.
The court directed a verdict for the defendants. Error is assigned on a judgment overruling an amended motion for new trial. It is *Page 893 stated in the brief for the plaintiff in error that the main and only substantial question presented by the writ of error is whether or not the court erred in directing a verdict for the defendants. As shown by our statement of facts, the court directed the jury to find that the evidence was not sufficient to authorize a verdict in favor of canceling the deed from Mrs. Heard to the defendant, Carl C. Heard, or to set aside a judgment rendered by the Court of Ordinary in Fulton County on April 1, 1946, adjudging Mrs. Heard to be a person of unsound mind. It will be conceded, of course, that the trial judge may in all civil cases direct a verdict which is demanded by the evidence.
1. We will first dispose of the attack made upon the deed. The petition alleges that it was procured by duress and without consideration. The sufficiency of the pleaded facts to state a cause of action for the relief sought is not challenged by demurrer; and assuming, but not holding, that the plaintiff would be entitled to prevail on proof of her case as laid, we have carefully examined the record to see what the evidence shows, and after doing so are fully convinced that in so far as this issue is concerned the court did not err in directing the verdict complained of. As to duress, the undisputed evidence shows that the deed was freely and voluntarily made. And concerning consideration, there is no conflict in the evidence except as to the amount to be paid. Mrs. Heard testified that the consideration for the deed was $2000 and a promise to furnish her with the necessities of life, but that only $1000 was actually paid. Carl Heard testified that he was only to pay $1000, which he paid, and furnish the grantor with the necessities of life. Undoubtedly the evidence shows that the deed was not without consideration and the plaintiff's own version of the case shows that she has no right to equitable relief by cancellation, but only a right to sue at law for a breach of the contract, and this is especially true in the absence, as here, of allegations and proof of the defendant's insolvency, or other equitable grounds.Brand v. Power, 110 Ga. 522 (36 S.E. 53); Thompson v.Lanfair, 127 Ga. 557 (56 S.E. 770); Davis v. Davis,135 Ga. 116 (69 S.E. 172); Fletcher v. Fletcher, 158 Ga. 899 (3) (124 S.E. 722); *Page 894 Brinson v. Hester, 185 Ga. 761 (196 S.E. 412). There being no evidence authorizing a verdict for cancellation of the deed, the court did not err in directing the verdict complained of.
2. Unless by some antecedent ruling the law of a case has been fixed, proof of allegations which do not state a cause of action will not authorize a recovery. Voyles v. Lee, 204 Ga. 282 (49 S.E.2d 529), et cit. In the present case no ruling on the sufficiency of the pleadings to state a cause of action for the relief sought has been invoked or made. Our statement of facts shows the attack made upon the judgment, and we will not repeat them here. It is sufficient to say that proof of them would not authorize a court of equity to set aside the judgment complained of, because children, regardless of their order of birth, are all equally related to the parent, and the ordinary is authorized to appoint a lunacy commission upon proof that 10 days' notice of an application therefor has been given to or waived by any three of the nearest adult relatives of the person to be examined, and no other notice of the proceeding is required. Code, § 49-604. And since, under the allegations and proof in the instant case, no legal verdict for the plaintiff could have been rendered upon this issue, the trial judge did not err in directing the one complained of.
Judgment affirmed. All the Justices concur.