Where the evidence, relating to the respective grounds of attack, fails to show, as to one deed, any undue influence and, as to the other, a mutual mistake of the parties to the contract, equity will not reform either deed; and the verdict of the jury in favor of the defendant was demanded.
James Scurry, the plaintiff in error, filed his petition in the Superior Court of Chatham County, Georgia, against Lucile Cook, the defendant in error, requesting equitable relief to eliminate her interest as grantee in certain real property conveyed to her in two deeds, one on the ground of undue influence and the other on the ground of mistake. The first deed involved the conveyance by a disinterested third party of a life estate to the defendant with remainder in fee to Scurry. As to this deed the plaintiff alleges: The defendant was employed over a period f years to clerk in his store and to wait on him. During this time she, with evil design and purpose, worked on his sympathies with flattery, persistent demands, and sly artifice, to which he was highly susceptible, until the same amounted to undue influence such that his free agency was destroyed, and he consented to give her an interest in the property by telling his real-estate agent, Bernard Eicholz, to draw up the papers so that she would have a home. The other deed involved the conveyance by another disinterested party of a one-half undivided interest in fee to the defendant. Here, the plaintiff alleges that the parties to the contract were mutually mistaken as to how the deed was drawn; that, due to an inadvertent mistake of the agent, Eicholz, the form of the conveyance was contrary to the intention of the parties, and the defendant's name was, in error, mentioned in the deed; and that the plaintiff alone was to have the whole interest in the property.
On the trial of the case before a jury, the plaintiff testified that he had given the defendant a life estate in a home because of her flattery, persistent demands, sympathy, and feminine charms, to which he was highly susceptible, yet he denied that she seduced him. He further testified that he could not read, that he relied on Eicholz to take care of him, that he wanted to make a will, but Eicholz advised him that a life estate would be better, that he purchased the property, and did not tell him how he wanted the deed drawn. As to the second deed, he testified that he did not know how the deed was drawn, but that he was looking to Eicholz to take care of him.
The testimony of Willie E. Brown, the seller of the real estate in the second transaction, was that she sold her equity in the property to the plaintiff, that she did not know that the defendant was a party to the contract of sale, and that she read the deed and signed it as drawn by Mr. Eicholz. Eicholz testified: that he had been doing business with the plaintiff and the defendant, but that he handled most of the transactions with the plaintiff; that the plaintiff wanted to make a will because the defendant had been very good to him, and he wanted to give her a home; that he suggested a life estate, and this was acceptable to the plaintiff; and that they bought one house in this manner, sold it, and purchased the property now in litigation. As to the drawing of the second deed, he testified: that it also was drawn giving the defendant a life estate, but the plaintiff read the deed and said, "That's not what I want"; that the plaintiff is able to read, although he says that he can not; that the plaintiff then instructed him to call the lawyer and redraft the deed; that "he was sitting in my office when I called Mr. Levy and told him to draw it a half undivided interest in that piece of property." Levy, the lawyer who drew this deed, in his testimony, confirmed the testimony above as to the changing of the deed.
There was other testimony and a number of exhibits were introduced, but the above testimony shows all the evidence offered on the question of undue influence and mistake. After the introduction of the evidence and the arguments by counsel, the jury returned a verdict in favor of the defendant, and the judgment was duly entered. Thereupon the plaintiff filed a motion for new trial, which was later amended to add several additional grounds. After a hearing the motion as amended was overruled, and the assignments of error here are on that judgment and on an exception pendente lite filed previously.
The main question upon which all others must turn is: does the evidence fail to show undue influence and a mutual mistake such as to demand the verdict in favor of the defendant? In order to answer this question, we must examine the evidence as to each respective ground of attack.
Generally undue influence is a term not clearly defined; however, its exercise may be inferred in all cases of a confidential or quasi-confidential relationship where the power of the person receiving a gift or other benefit has been so exerted upon the mind of the donor as, by improper acts of circumvention, to have induced him to confer the benefits contrary to his deliberate judgment, reason, and discretion. In order to render a transaction void, it must operate to deprive the donor of his free agency by substituting for his will that of another. See 17 Am. Jur., pp. 906-917; Frizzell v. Reed, 77 Ga. 724; Stanley v. Stanley, 179 Ga. 135 (175 S. E. 496); Norman v. Hubbard, 203 Ga. 530 (47 S. E. 2d, 5 74). Ordinarily undue influence is not the subject of direct proof, but is to be inferred from circumstances. Therefore a great latitude of proof is allowed in order to determine if a legal inference of undue influence may be present, and the evidence may embrace all the facts and circumstances which go to make up the transaction, disclose its true character, and explain the acts of the parties in order to throw light on their objects and intentions. 20 Am. Jur. 320, 345; Elliot v. Gary, 153 Ga. 665, 667(4) (112 S. E. 900); Arnold v. Freeman, 181 Ga. 654 (183 S. E. 811); Trustees of Jesse Parker Williams Hospital v. Nisbet, 191 Ga. 821, 822 (12) (14 S. E. 2d, 64); Brumbelow v. Hopkins, 197 Ga. 247, 252(3) (29 S. E. 2d, 42); Bowman v. Bowman, 205 Ga. 796(2) (55 S. E. 2d, 298).
The evidence here did not disclose a confidential relationship; nor did any of the facts show that the alleged beneficiary possessed any particular power over the plaintiff which would have created the relationship of dominance of the defendant over him; nor did any of the circumstances surrounding the transaction disclose a situation from which a legal inference of undue influence could be drawn. Nor can all influence be said to be undue, since a person is not prohibited from exercising proper influence to obtain a benefit to himself. Brumbelow v. Hopkins, supra; Butler v. Lashley, 197 Ga. 461 (29 S. E. 2d, 508); Orr v. Blalock, 195 Ga. 863, 866 (1) (25 S. E. 2d, 668). And the undue influence which will annul a deed must be of that potency which substitutes somebody else's will power for that of the donor. DeNieff v. Howell, 138 Ga. 248 (75 S. E. 202); Burroughs v. Reed, 150 Ga. 724 (1) (105 S. E. 290).
Turning now to the question of mutual mistake, we shall examine the evidence as to the second deed in the light of what evidence is necessary for equity to grant relief. A mistake relievable in equity is some unintentional act, omission, or error, arising from ignorance, surprise, imposition, or misplaced confidence. This power should be exercised with caution, and to justify it the evidence should be clear, unequivocal, and decisive as to the mistake. Code, 37-202; Sawyer Coal & Ice Co. v. Kinnett-Odom Co., 192 Ga. 166, 173 (6) (14 S. E. 2d, 879); Hood v. Connell, 204 Ga. 783 (3-b) (51 S. E. 2d, 853). And a mutual mistake is one which is reciprocal and common to all of the parties to the transaction. See Code, 37-207, 37-208; 19 Am. Jur., 74, 77, 55, 57; Newell v. Stiles, 21 Ga. 118; Werner v. Rawson, 89 Ga. 619 (15 S. E. 813); Wachovia Bank & Trust Co. v. Jones, 166 Ga. 747 (144 S. E. 256); Crim v. Alston, 169 Ga. 852 (151 S. E. 807); Helton v. Shellnut, 186 Ga. 185 (197 S. E. 287); Rawson v. Brosnan, 187 Ga. 624 (1 S. E. 2d, 423); Hood v. Connell, supra (3). The evidence here was insufficient to show a mutual mistake, the facts failing to show mutuality or how it occurred. There was possibly some evidence of a mistake on the part of one party to the contract, but, on the ground of mutual mistake, equity will not reform a written contract unless the mistake is alleged and proved to be the mistake of both parties. Quiggle v. Vining, 125 Ga. 98 (54 S. E. 74); Adair v. Adair, 38 Ga. 46; Salvage Sales Co. v. Aarons, 181 Ga. 133 (1) (181 S. E. 584); Rawson v. Brosnan, supra; Cantrell v. Kaylor, 203 Ga. 157 (45 S. E. 2d, 646). On the question of an agent signing for the complaining party, who alleges that he could not read or did not read the instrument, see Dover v. Burns, 186 Ga. 19 (196 S. E. 785).
Under the evidence, the verdict of the jury was demanded. Lunsford v. Armour, 194 Ga. 53 (2) (20 S. E. 2d, 594), and citations. And, for this reason, the alleged errors in the charge of the court will not be considered. Nor is there any merit in the exceptions to the overruling of the demurrers to the answer, there being an issuable defense therein and no merit in the special demurrers to the various paragraphs of the answer.
Judgment affirmed. All the Justices concur.