BUCHER et al. v. MURRAY., 212 Ga. 259, 91 S.E.2.d 610 (1956)

Supreme Court of Georgia

Status: ARGUED

Docket Number: 19220

Parts: HAWKINS, Justice.

Linked as:

Summary

Judgment reversed. All the Justices concur.

Summary

Judgment reversed. All the Justices concur.

Text

L. A. Hargreaves, Franklin, Eberhardt, Barham & Coleman, for plaintiff in error.

This was an equitable petition brought by J. G. (Gordon) Murray to set aside and cancel a deed executed by him to Minnie M. Bucher and Irene Spikes, upon the ground that the execution thereof was fraudulently induced, it being alleged that the sole consideration therefor was the joint promise and agreement on the part of the grantees to support, maintain, provide, and care for one Mrs. Fannie Christopher for the remainder of her natural life; that this promise was made by the defendants fraudulently and for the purpose of securing the signature of the grantor to the conveyance, and that the defendants never intended to comply with their agreement, and had failed and refused to do so. When the case was here on demurrer we held that the allegations of the petition were sufficient to state a cause of action against these defendants upon the ground of inceptive fraud, which would authorize the cancellation of the deed. Upon the trial of the case on its merits, the jury returned a verdict for the plaintiff. To the judgments denying the defendants' motion for a new trial and their motion for a judgment notwithstanding verdict the defendants excepted. Held:

1. Under the ruling made when this case was here on demurrer (Bucher v. Christopher, 211 Ga. 317, 85 S. E. 2d 760), the mere breach of a verbal promise such as that alleged to have been made by the defendants in the present case would not constitute such fraud as would authorize the cancellation of the deed, unless the promise was made with the present intention on the part of the promissors not to comply with it. See also Brinson v. Hester, 211 Ga. 557, 87 S. E. 2d 369), this proof, coupled with the contention of the defendants that no such contract was ever made, and the other facts and circumstances shown by the evidence for the plaintiff as to the time, place, way and manner in which the deed was prepared, executed, and attested, the quantity of land conveyed, and the nominal consideration expressed in the deed, would authorize the jury to infer, although it would not require them to find, that the defendants never intended to do that which they contend they had never agreed to do. Code 37-706 provides: "Fraud may not be presumed, but, being in itself subtle, slight circumstances may be sufficient to carry conviction of its existence." Rarely, if ever, can a fraudulent intent be shown by direct proof, and where, as in this case, transactions between relatives are under review, slight circumstances are often sufficient to induce belief on the part of the jury that there was fraud between the parties. Woodruff v. Wilkinson & Hatcher, 73 Ga. 115 (3); Horton v. Johnson, 192 Ga. 338, 346 (15 S. E. 2d 605); Stow v. Hargrove, 203 Ga. 735 (48 S. E. 2d 454). The trial judge did not err in overruling the general grounds of the motion for a new trial and the defendants' motion for judgment notwithstanding the verdict.

E. R. Smith, Jr., Vickers Neugent, contra.

1956