Alexander v. Alexander, 46 Ga. 283

Alexander v. Alexander

46 Ga. 283 | Ga. | 1872

McCay, Judge.

Nothing is better settled than that an executor or administrator who buys property at his own sale, either directly or indirectly, holds it subject to the option of the cestui que trusts, to affirm or disaffirm the sale. The purchase by the trustee is prima facie a fraud, and however the formal title may be, he holds the property as trustee, under the implied undertaking which the Jaw casts upon him.

One of the instances given by our Code (section 2290) of an implied trust is when, from any fraud, one person obtains the *291title to any proper which rightfully belongs to another: See, also, 39th Georgia Reports, 672; 23d Ib., 151; 8th Ib., 236. The administrator is still an implied trustee for the cestui que trusts.

Implied trusts are expressly excepted from the Statute of Frauds requiring trusts of lands to be in writing; and our Code (section 2291) declares that in all cases where a trust is sought to be implied, the Courts may hear parol evidence of the nature of the transaction, or the circumstances, or conduct of the parties, either to imply or rebut a trust.

There was, then, no error of the Court in any of the rulings permitting parol evidence, to show that though the naked legal title to this land was in the administrator, yet in fact it was the property of the plaintiffs; that the administrator had bought it at his own sale for their use. His statements to that effect — his giving it in for taxes as the property of the minors — are each legitimate acts, going to show, that while the legal title was in him, he was, in fact, an implied trustee for them. But the answer to the bill in equity is not parol evidence. It is a written statement by the administrator that this land was the property of his wards. The proof of the fact of title by this written statement under the hand, nay, under the oath, of the administrator, would be good evidence even of an express trust. What more could be asked ? A man has a title to land; he makes a written statement, signs and swears to it, that the land is, in fact, the property of another. This is no parol proof; it is written, and completely within the Statute of Frauds, and within section 2284 of the Code declaring that express trusts must be created or declared in writing.

Under our law, the owner of a perfect equity may sue at law, and if the trust be complete, either by the parol or written proof, the right of the plaintiffs to sue is complete.

The ruléis undoubted that receipts are not conclusive: Code, 3754. And it is just such receipts, to-wit: from wards to guardians, that are properly within the rule: 38 Georgia, 544; 34th, 315; 29th, 585; 5th, 373; 3d, 210; 11th, 195. *292See, also, Wooten vs. Benton, 15 Georgia, 570. The parol evidence was most material here. Were it definitely understood at the time, that this administrator had bought the land at his own sale, it was competent for the wards of full age to agree that he might keep it as his own, he accounting to them for the price, and it was therefore of the highest importance to show that at that time they were resting under the belief that he had bought the land not for himself, but for them. And that he was holding it not as land he had bought and was to pay for, but as the land of his wards. His answer to the bill was strong, conclusive proof of this, especially as it appears from the record that it was not disclosed until at the trial that any deed was taken to the administrator in his own name. His statements, .his acts, and especially his answer, all went to show that he had taken the title to himself as guardian. Upon the whole we think the evidence properly admitted and the verdict right.

Judgment affirmed.