Bolton v. Morris

Supreme Court of Georgia

Bolton v. Morris

71 S.E.2d 217, 209 Ga. 153, 1952 Ga. LEXIS 435

CourtSupreme Court of Georgia

DecidedJune 10, 1952

Docket17863

StatusPublished

Cited by6 cases

This text of 71 S.E.2d 217 (Bolton v. Morris) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bolton v. Morris, 71 S.E.2d 217, 209 Ga. 153, 1952 Ga. LEXIS 435 (Ga. 1952).

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Opinion

Atkinson, Presiding Justice.

1. Where a deed is made in consideration, of support for life, the redress is an action for the value of the support withheld, or an equitable action to rescind if the special facts, such as fraud or insolvency, would make the latter the appropriate relief. Lindsey v. Lindsey, 62 Ga. 546; McCardle v. Kennedy, 92 Ga. 198 (17 S. E. 1001); Wood v. Owen, 133 Ga. 751 (3) (66 S. E. 951); House v. House, 191 Ga. 678 (13 S. E. 2d, 817); Dumas v. Dumas, 205 Ga . 238 (1) (52 S. E. 2d, 845).

2. Where the consideration of a deed is a promise by the grantee to support the grantor, a breach by the grantee does not. constitute fraud, so as to authorize cancellation, unless the promise was made with the present intention of the grantee not to comply with it. A mere failure to comply would be insufficient to establish a fraudulent intent. Brinson v. Hester, 185 Ga. 761 (1) (196 S. E. 412), and citations.

While the petition alleged that the grantee -was insolvent, but further alleged that she would not be able to respond in damages except by virtue of holding the deed to the described property, the value alleged being $5000, this was not an unqualified allegation of insolvency, as property conveyed by a deed sought to be canceled should be considered as property of the grantee in determining whether he is insolvent. Schneider v. Smith, 189 Ga. 704 (6) (7 S. E. 2d, 76).

Judgment affirmed.

All the Justices concur.

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Atkinson, Presiding Justice.

1. Where a deed is made in consideration, of support for life, the redress is an action for the value of the support withheld, or an equitable action to rescind if the special facts, such as fraud or insolvency, would make the latter the appropriate relief. Lindsey v. Lindsey, 62 Ga. 546; McCardle v. Kennedy, 92 Ga. 198 (17 S. E. 1001); Wood v. Owen, 133 Ga. 751 (3) (66 S. E. 951); House v. House, 191 Ga. 678 (13 S. E. 2d, 817); Dumas v. Dumas, 205 Ga . 238 (1) (52 S. E. 2d, 845).

2. Where the consideration of a deed is a promise by the grantee to support the grantor, a breach by the grantee does not. constitute fraud, so as to authorize cancellation, unless the promise was made with the present intention of the grantee not to comply with it. A mere failure to comply would be insufficient to establish a fraudulent intent. Brinson v. Hester, 185 Ga. 761 (1) (196 S. E. 412), and citations.

While the petition alleged that the grantee -was insolvent, but further alleged that she would not be able to respond in damages except by virtue of holding the deed to the described property, the value alleged being $5000, this was not an unqualified allegation of insolvency, as property conveyed by a deed sought to be canceled should be considered as property of the grantee in determining whether he is insolvent. Schneider v. Smith, 189 Ga. 704 (6) (7 S. E. 2d, 76).

Judgment affirmed.

All the Justices concur.

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71 S.E.2d 217, 209 Ga. 153, 1952 Ga. LEXIS 435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bolton-v-morris-ga-1952.

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