Haddock v. Callahan Grocery Co.

Hill, J. 1. The holder of a security deed, who brought ejectment against the widow o'f the grantor in such deed, was entitled to recover, under the facts of this case; and the court did not err in directing a verdict accordingly. The widow’s defense in resistance to the suit was based upon a claim of title under a year’s support. The report of the commissioners to set aside the year’s support shows that there was set apart to her only an equity in the land, subject to the claim of the plaintiff’s’ security deed in question. The verdict as directed by the court in no way conflicts with the widow’s right under the judgment setting aside a year’s support, because, after recovery by the plaintiffs in the ease, the widow will be entitled to redeem by paying to the plaintiff the amount of the debt. (a) Moreover, the widow, having accepted the year’s support subject to the security deed, was estopped from contesting the validity of the deed and year’s support. (b) The court did not err in excluding the return of the appraisers setting aside the year’s support, for any reason assigned. 2. “The contract of an insane person, or one non compos mentis, who has never been adjudicated to be insane or of unsound mind, as prescribed by the code, is not absolutely void, but only voidable.” 3. The general rule is that only the personal representative of a deceased person, or his heirs at law, can 'bring suit in order to avoid a contract made by him while insane. McClure Investment Co. v. Eubanks, 151 Ga. 763 (108 S. E. 204). The widow of a deceased person is not, strictly speaking, an heir at law of her husband. Civil Code (1910), § 3931 (3) ; Truett v. Funderburk, 93 Ga. 686 (2) (20 S. E. 260). In [205] tlie instant ease neither the personal representatives nor the heirs at law are parties to the suit. Under the facts the widow of the decedent, not being the legal representative of the deceased, and not having elected to take a child’s part in his estate, is not such a person as may avoid the contract of her deceased husband upon the ground of insanity. See Farmers Banking Co. v. Key, 112 Ga. 301 (37 S. E. 447) ; Heard v. Kenney, 146 Ga. 719 (92 S. E. 211). No. 5291. November 19, 1926. 4. The court did not err in overruling the motion for a new trial. Judgment affirmed. All the Justices concur. W. L. Stone and C. L. Glessner, for plaintiff in error. A. II. Gray, contra.