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Cancellation. Before Judge Stephens. Johnson Superior Court. September 17, 1956.
HEAD, Justice.
1. The plaintiff's testimony with reference to his alleged incapacity to execute the deed by reason of intoxication did not make an issue of fact for consideration by the jury.
2. No facts were testified to by the plaintiff to sustain the allegations that a trust was created.
Wallace Douglas filed a petition against Mrs. Billie Sumner for the cancellation of a deed. He alleged: The plaintiff is the owner of described land. There appears of record in the office of the clerk of the superior court a deed to the land, purported to have been executed by the plaintiff to the defendant. The deed was executed without any present or future consideration, and the plaintiff has never parted with possession of the land, and no title has ever passed. "Said deed was executed by petitioner to defendant to hold said property in trust for him and that she would deed same back to him at his request all of which said defendant now refuses to do." The record of the deed operates as a cloud upon the plaintiff's title. It is utterly void, having been executed without any consideration. By reason of the purported deed, the defendant is in position to encumber the land or convey it, to the hurt and loss of the plaintiff.
The prayers were for process; for cancellation; that the defendant be restrained and enjoined from conveying, encumbering, or disposing of the property; and for other relief.
Attached to the petition as an exhibit is a copy of the deed, which is a warranty deed in form, dated January 14, 1956, reciting a consideration of $500, and properly witnessed and recorded.
By amendment the plaintiff alleged: "At the time of the execution of the deed to the defendant he was not mentally capable of executing the same for the reason he was at the time for several months prior thereto in a drunken condition, that for several months he had been constantly under the influence of liquor, and during said time defendant knowing that he was addicted to drinking whisky, carried him to purchase whisky and kept him in a drunken condition until he did not possess sufficient mind and reason equal to a full understanding of the nature of any act done by him . . . Petitioner further shows that he had every faith and confidence in defendant and he believed that she would deed said lands back to him upon request as she had agreed to do, and too being told by defendant that he could not sell his timber without deeding land to someone else and not being cap able of reasoning for himself executed said deed to defendant."
There was no demurrer to the petition as amended. On the trial of the cause, at the conclusion of the plaintiff's testimony, he rested his case. The trial judge granted a nonsuit, and the exception is to that judgment.
1. In the present case, the plaintiff's testimony was so vague and contradictory that it is impossible to determine upon which of two theories (each contradictory of the other) he sought to rely for a cancellation of the deed. By amendment he alleged that for several months prior to the execution of the deed, and at the time of its execution, he was not mentally capable of executing a deed by reason of intoxication.
"A contract made by a drunken person is not void, though the intoxication be brought about by the other party, but is merely voidable at his election, and may be ratified by him expressly or by conduct inconsistent with its rescission." Code 20-207.
Upon direct examination, the plaintiff testified that, at the time he executed the deed, he did not realize that he was passing title to the defendant. He testified that he did not have any intention of passing title to her, and upon being asked, "Why did you sign the deed then?", he replied, "She was to hold the place for a few days, few weeks, and turn it back." On cross-examination, the plaintiff testified that he went to the office of the person preparing the deed; that the defendant was not with him; that he furnished the information to the author of the deed for its preparation; that, after it was executed, he took it to the defendant, to the residence of one Mr. Alderman; that he gave it to her and told her to have it recorded; that she gave it back to him and told him that, if he wanted it recorded, to do so; that he then took the deed to the clerk's office, had it recorded, paid the recording fee, and delivered it to the defendant.
The plaintiff's testimony with reference to the execution of the deed not only fails to affirmatively make an issue of fact as to intoxication at the time, but on the contrary, completely negatives such a theory.
The plaintiff's testimony was insufficient to show a failure of consideration for the deed.
2. "All express trusts shall be created or declared in writing." Code 108-105. The plaintiff did not testify to any fact tending to show an express trust between the parties. While it has been held that a valid trust may be created in writing for a person who is sui juris where there is a remainder over ( Budreau v. Mingledorff, 207 Ga. 538, 63 S. E. 2d 326), the plaintiff did not testify to any fact showing, or tending to show, the execution of such a trust.
The plaintiff did not allege, or testify to, any act of fraud or fraudulent conduct on the part of the defendant, and did not otherwise testify to any fact that would bring the transaction between the parties within the rules of an implied trust as defined by Code 108-106. His testimony, that he did not know what he was doing at the time he executed the deed, and that he did not intend to convey title to the defendant, negatives any intention on the part of the plaintiff to establish a trust of any kind for his own benefit, which generally can not be done solely for the benefit of a person of lawful age, laboring under no legal disability. Gray v. Obear, 54 Ga. 231; Armour Fertilizer Works v. Lacy, 146 Ga. 196 (91 S. E. 12); Hoffman v. Chester, 201 Ga. 447, 451 (39 S. E. 2d 857).
3. "The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague, or equivocal." Southern Ry. Co. v. Hobbs, 121 Ga. 428 (49 S. E. 294); Davis v. Akridge, 199 Ga. 867, 868 (2) (36 S. E. 2d 102); Partain v. King, 206 Ga. 530 (57 S. E. 2d 617). The plaintiff's testimony in the present case falls squarely within this rule, and it was not error for the trial judge to grant a nonsuit at the conclusion of his testimony, there being no other testimony offered on behalf of the plaintiff.
Judgment affirmed. All the Justices concur.
W. C. Brinson, contra.
Emory L. Rowland, for plaintiff in error.
Saturday May 23 01:43 EDT

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