DOUGLAS v. SUMNER

Supreme Court of Georgia1957-03-12No. 19569

213 Ga. 82

Summary · law.co

Holding. The trial court's judgment granting nonsuit was affirmed because the plaintiff's vague and contradictory testimony failed to establish any viable claim for cancellation of the deed.

The plaintiff sought to cancel a deed transferring real property to the defendant, initially claiming intoxication at the time of execution and later alleging alternative theories including failure of consideration, express trust, and implied trust. The plaintiff testified that he did not realize he was conveying title and believed the defendant would hold the property temporarily and return it. However, his own testimony contradicted these claims: he went to the drafter's office, provided information for the deed, personally recorded it, paid the recording fee, and delivered it to the defendant—actions inconsistent with a claim that he lacked capacity or intent to convey.

The court found the plaintiff's testimony vague, self-contradictory, and largely negating his own allegations. The evidence failed to establish intoxication, failure of consideration, an express trust (which would have required written documentation), or an implied trust with fraudulent conduct. Under Georgia law, a party's own testimony that is contradictory and equivocal must be construed against him. Because the plaintiff presented no corroborating evidence and his testimony alone could not sustain any theory of relief, the trial court properly granted a nonsuit.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether intoxication at execution voids a deed
Whether plaintiff established lack of capacity or intent to convey
Whether express or implied trust was created
Standards for evaluating self-contradictory testimony of a party-witness

Procedural posture

The trial court granted a nonsuit at the conclusion of the plaintiff's testimony, and the plaintiff appealed the resulting judgment.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Head, Justice.

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 clerks 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.

“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).

“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.