Opinion
20811.
SUBMITTED FEBRUARY 8, 1960.
DECIDED MARCH 16, 1960. REHEARING DENIED MARCH 30, 1960.
Equitable petition. Fulton Superior Court. Before Judge Moore. October 9, 1959.
S. T. Allen, for plaintiffs in error.
A petition which alleges that the grantor in a deed is incapable of contracting or of understanding the nature of a contract from a given date until his death and that he had no lucid intervals during that entire time, sets out a cause of action on behalf of the heirs at law of the grantor to cancel and set aside a deed executed by the said grantor during the period in which he was alleged to have been incompetent.
SUBMITTED FEBRUARY 8, 1960 — DECIDED MARCH 16, 1960 — REHEARING DENIED MARCH 30, 1960.
Harris Kenner, who is the defendant in this case, brought a dispossessory-warrant proceeding against Queenie Davenport Kenner and Lois Kenner seeking to oust them from described property to which he held a deed from Howell Kenner, deceased. In Kenner v. Kenner, 92 Ga. App. 851 ( 90 S.E.2d 33), it was held that Queenie Davenport Kenner and Lois Kenner were tenants at sufferance of Harris Kenner. Thereafter, Queenie Davenport Kenner and Lois Kenner brought a suit to enjoin the further prosecution of the dispossessory-warrant proceedings and to cancel and set aside the deed from Howell Kenner to Harris Kenner and for other relief upon the ground that at the time the deed was made, Howell Kenner was incompetent to make a deed. In Kenner v. Kenner, 214 Ga. 381, 383 ( 104 S.E.2d 896), this court held that since it was sought to cancel the deed, all the heirs of Howell Kenner were necessary parties to the action, and that since they were not parties, the deed could not be canceled and the deed was "valid and subsisting as a conveyance of title, and the judgment of the ordinary granting the plaintiffs a year's support in the property conveyed by the deed would be a nullity."
Thereafter, James Kenner and Comer Kenner, two of the heirs of Howell Kenner, brought an action to enjoin the further prosecution of the dispossessory-warrant proceeding, to cancel the deed from Howell Kenner to Harris Kenner, and for other relief. By amendment and by order of court duly entered thereon, all other heirs of Howell Kenner were made parties defendant in the court below.
A general demurrer to the petition was overruled. Certain special demurrers were overruled and others sustained. To the judgment overruling the defendant's general and special demurrers the defendant excepted and has assigned the same as error to this court.
1. The general demurrer was properly overruled. The petition alleges that the deed in question was executed on August 30, 1946; that Howell Kenner was from July 27, 1934, until the date of his death on April 27, 1954, in Milledgeville State Hospital, mentally incompetent and incapable of contracting or understanding the nature of a contract; that he required constant supervision to keep him from wandering away; that during the entire time he had no lucid intervals.
The only argument made by the plaintiff in error is to the effect that Kenner v. Kenner, 92 Ga. App. 851 ( 90 S.E.2d 33), and Kenner v. Kenner, 214 Ga. 381 ( 104 S.E.2d 896), referred to in the statement of facts, are controlling in this case. Just how these cases are deemed to be controlling is not clear from the argument in this case. However, in neither of the above cases, which incidentally are between parties different from those in the instant case, was the question of title adjudicated, nor was the question of the validity or invalidity of the deed or the competency or incompetency of the maker of the deed considered.
It follows that, since the petition set out facts sufficient to show that Howell Kenner was not competent to make a deed at the time the deed was made, it was not erroneous to overrule a general demurrer to the petition seeking to cancel and set aside the deed in question.
2. The special demurrer to paragraph 3 of the petition raising the question of the non-joinder of necessary parties will not be considered because this paragraph has been amended since the demurrer was filed and certain parties were added as parties defendant.
3. The other questions presented by the record in this case not having been argued in this court will be considered as abandoned.
Judgment affirmed. All the Justices concur.