1. Oral admissions of fact made by counsel in the opening statement to the jury are not proper matters for consideration in passing on an oral motion to dismiss in the nature of a general demurrer. Pattillo v. Jones, 113 Ga. 330, 333 (38 S. E. 745); Hicks v. Beacham, 131 Ga. 89 (2) (62 S. E. 45); Jackson v. Davis, 203 Ga. 39 (1) (45 S. E. 2d, 278).
3. In the absence of a brief of evidence, it cannot be held as a matter of law that the final decree was inherently erroneous because it restricted the defendant's right to recover to proceeds from a sale of the property.
Mrs. H. R. (Jo) Wagar, by next friends, filed in Fulton Superior Court, against Daniel B. Texeira, a petition which as amended alleges in effect: In 1951 the defendant obtained the signature of Mrs. Wagar to each of the following instruments without paying any consideration therefor: (1) a warranty deed purporting to convey to him a described duplex house and lot; (2) a written agreement that pretended to render her a tenant at will of the property under the defendant as landlord; and (3) a bill of sale of furniture. Copies of each of the instruments were attached as exhibits to the petition. The deed, the tenancy agreement, and the bill of sale were void because at the times when the purported signatures were obtained Mrs. Wagar was non compos mentis. The above papers should be canceled for the additional reason that they were obtained by the undue influence of the defendant, and Mrs. Wagar did not sign them of her own free will, but instead was under the domination of the defendant at the times of her purported signatures. The deed and the agreement in regard to tenancy were obtained by the defendant by falsely and fraudulently pretending to Mrs. Wagar that he intended to marry her, and that he was obtaining the papers for the purpose of providing a permanent home for her. The purported bill of sale to furniture was obtained by fraudulent misrepresentations of the defendant to Mrs. Wagar that it was necessary for her to sign it in order for the furniture to be insured. Mrs. Wagar believed these fraudulent misrepresentations and as a result thereof purported to sign the deed, the tenancy agreement, and the bill of sale. On May 17, 1951, the duplex had a reasonable market value of $13,500 and a quick-sale value of $12,500, and was encumbered by a first loan deed securing an indebtedness of about $8,500. The furniture had a value of about $4,000, and a rental value of $800 a year. Since May 17, 1951, the defendant has been collecting $70 per month rent from one side of the duplex, and much of the time he has occupied the other side, and has been using the furniture. Unless the defendant is enjoined, there is grave danger that the house, rents, and furniture will be disposed of by the defendant and will not be forthcoming to any decree in the case. A receiver is necessary in order to insure the house and furniture, and to devote the rents to payment of taxes, insurance premiums, and payments of the loan thereon. Mrs. Wagar is also the owner of certain personal effects situated in the duplex. In March, 1952, the defendant ejected Mrs. Wagar by dispossessory proceedings which were a nullity because of her aforesaid condition. Mrs. Wagar has no cash or liquid assets and there is no way to raise money to make any tender of any amount to the defendant, or to pay fire insurance premiums. No guardian has been appointed for her.
The prayers, besides for process and rule nisi, were: that the deed, the tenancy agreement, and the bill of sale be canceled; that the defendant be enjoined from occupying the premises, collecting any rents, and selling or encumbering the property; that a receiver be appointed; that an accounting be had; that the defendant be given credit for whatever amount, if anything, he is equitably entitled to; and that the property be sold and the net proceeds properly divided between the parties.
An interlocutory judgment was rendered temporarily enjoining the defendant from selling the property, denying a temporary receiver, but not passing upon whether a permanent receiver should be appointed.
When the case came on for trial, the defendant made an oral motion to dismiss the amended petition, upon the grounds: (1) it was not alleged that the petitioner made any tender or offered to restore the status prior to the filing of the petition; (2) the reasons alleged to excuse the petitioner's failure to make a prior tender, and the offer to do equity made in the amended petition were insufficient. Counsel for petitioner in his opening statement to the jury stated that, prior to the time the suit was filed, the defendant paid off in full and retired the loan deed securing an indebtedness of about $8500. Thereupon the defendant renewed his previous oral motion to dismiss. The oral motions to dismiss were denied, to which rulings the defendant excepted.
The jury returned a verdict in favor of the petitioner for cancellation of the instruments as prayed, finding the dispossessory proceeding to be a nullity, and finding in favor of the defendant the sum of $8838.91 by way of equitable reimbursement due him by the petitioner, upon which a final decree was entered.
Without making a motion for new trial, error is assigned upon the final decree on the grounds that it is inherently erroneous, because (1) it authorizes a sale of the property without any provision for a definite reimbursement to the defendant of the sum which the jury found he was equitably entitled to; (2) it expressly restricts the defendant's right to recover the equitable reimbursement to the uncertain amount of the proceeds from the sale of the property.
The brief of counsel for the defendant contains the statement: "Defendant does not feel that it is necessary to pursue the exceptions to the final decree based on the inherent errors therein pointed out in the exceptions. The purpose of these assignments was to point up and illustrate the magnitude of the errors in the antecedent rulings herein complained of."