The deposition of the appellant showed that the deed made by him to the appellee was for the purpose of the fraudulent evasion of taxes, and a court of equity can grant him no relief.
Roy Daniell brought this equitable action against John Collins in Baker Superior Court to cancel and set aside a deed to 170 acres of land, and for injunctive relief. The petition alleged in substance that: The deed was executed December 27, 1960, upon the false representations by Collins that if Daniell would sign the deed, Collins would reconvey the property to Daniell at any time Daniell should request him to do so. Collins made the representations knowing that they were false, and with, the intention of deceiving Daniell. Daniell had no knowledge that the representations were fraudulent and designed to deceive him. The deed recites a consideration of $10 and other valuable consideration, but it was in fact without consideration. At the time Daniell signed the deed he was not mentally competent to understand the nature of the transaction. When he requested Collins to reconvey the land, Collins refused. Collins is insolvent and Daniell is without an adequate remedy at law.
Collins filed demurrers, both general and special, to the petition. No ruling was made on the demurrers. In his answer Collins denied the allegations of the petition, and alleged that Daniell voluntarily sold the land to him for a valuable consideration that he went into possession of the land under the deed and has since remained in possession.
The depositions of the parties were taken, and Collins filed a motion for summary judgment. After the hearing the trial judge granted the motion for summary judgment, and the appeal is from that judgment.
Collins testified on deposition that: He had been renting the land in question from Daniell for several years. The purchase was for a valuable consideration of $11,000, $5,000 of which he paid in cash a few days after the execution of the deed, and $2,000 annually thereafter, in cash, until he had paid the consideration of $11,000. He went into possession of the house on the land, claimed it as his own, and obtained a homestead exemption for taxes. He did not agree to reconvey the property upon the request of Daniell.
The testimony of Daniell on deposition was, in substance, that: He signed the deed in 1960. No one made him sign it, and he knew the effect of the conveyance, but Collins had promised to deed the property back to him whenever he wanted it. The transaction was made pursuant to an agreement between the parties that Collins would occupy the premises and claim homestead exemption, and he would pay the difference in taxes. While he has requested Collins to provide him with the receipts for the taxes Collins has paid so that he could reimburse him, Collins has never furnished the receipts and he has paid no taxes on the land. The deed was made for the purpose of reducing his personal taxes to Baker County. He did not put the provision for reconveyance in the deed because he trusted Collins. He has demanded of Collins that he reconvey the property pursuant to the agreement and Collins has refused. He is mentally capable of handling his personal business.
The appellant's only assignment of error is that there was a genuine issue in the case as to material facts, and that the appellee was not entitled to a summary judgment as a matter of law.
While the pleadings create genuine issues as to material facts, the depositions of the parties totally fail to support these issues as to the controlling points to be resolved by this court, namely, whether the appellant Daniell was mentally incompetent, and whether under the pleadings and depositions he was entitled to the equitable relief sought. See Crutcher v. Crawford Land Co., 220 Ga. 298 (3) (138 SE2d 580)
"The law presumes every man to be sane until there is evidence to the contrary, and the burden is on the party attacking a contract to show the incompetency of the signer at the time of the execution thereof, . . ." Jones v. Smith, 206 Ga. 162 (8) (56 SE2d 462). The appellant has not attempted to demonstrate his lack of mental capacity to know the effect of the conveyance he executed. His deposition shows that he owns other land and has entered into a lease contract with the Great Southern Timber Corporation for a consideration which included the payment by the corporation of all taxes on this land. The allegation in the petition of mental incompetency, supported by no evidence, would not make an issue of fact preventing the appellee from obtaining a summary judgment in his favor.
In McKinney v. Atkinson, 209 Ga. 49 (2) (70 SE2d 769)
, this court applied this maxim even though the issue was not raised in the pleadings, and held that the evidence demanded the judgment as a matter of law. In that case Chief Justice Duckworth, speaking for the court, gave the following ruling: "The defendants need not invoke the clean-hands maxim, as the court will apply it of its own accord."
In Whitley v. Whitley, 220 Ga. 471 (139 SE2d 381)
, the petition seeking a cancellation of contracts showed that the purpose of the petitioner in executing the contracts was to avoid estate taxes by a sham transaction, and this court held: "The petition, which showed that the petitioner had come into court with unclean hands, failed to allege facts authorizing cancellation of the contracts and therefore did not set forth a cause of action for any of the relief sought."
Since the deposition of the appellant in the present case showed that the purpose of the transaction was the fraudulent evasion of taxes, which would preclude relief in a court of equity, the trial judge did not err in granting the motion of the appellee for summary judgment.
Judgment affirmed. All the Justices concur.