140 Ga. 640 | Ga. | 1913
Lead Opinion
1. The defendant was the widow of James Banks. She claimed a half interest in the land under a deed executed by James Banks to herself, and the other half interest by inheritance from J ames Banks, who died after the execution of the deed. The plaintiff was a sister of J ames Banks, and claimed by virtue of an alleged resulting trust; it being contended that she supplied the consideration to buy the land and requested James Banks to buy it for her, and that he made the purchase but took the deed in his own name. James Banks died before the suit was instituted. The plaintiff, being incompetent to testify as to conversations with the deceased James Banks, produced two other witnesses, one a niece and the other a nephew, to testify as to conversations with James Banks before his decease, wherein he was said to have made stater ments which, in effect, tended to support the plaintiff’s theory of a resulting trust. Subsequently to the trial at which such .testimony was given, the plaintiff died, leaving among her heirs at law the two witnesses who had delivered testimony as above indicated, who, by virtue of being heirs of the plaintiff, became interested in the recovery. Before another trial, however, both of these witnesses died. After their death, an administrator having been appointed to prosecute the case, another trial proceeded, which resulted in the verdict which formed the basis of the motion for new trial upon the overruling of which the present bill of exceptions was sued out. On the last trial the evidence delivered on the former trial by the two witnesses just mentioned was admitted over the objection that if such witnesses were in life they would be heirs at law of the plaintiff, now deceased, represented by the administrator, and would be
2. The deed which James Banks took in his own name to the land in dispute was executed in 1870 and recorded in 1872. The deed from James Banks to his wife (the defendant), conveying an
3. Complaint is also made on the ground that the judge did not caution the jury and charge them fully relatively to certain admissions by James Banks, proof of which was relied upon by the plaintiff to establish a resulting trust. There was no request for instruction upon this subject, and under the circumstances the omission to charge was not erroneous. Hawkins v. Kermode, 85 Ga. 116, 123 (11 S. E. 560).
4. It was alleged that the plaintiff, through her agent James Banks, sold a lot on Davis street, and out of the proceeds bought the land in dispute, hereinafter referred to as the Bellwood property, to which it was intended that title should be taken in the name of the plaintiff, but without her knowledge or consent it was taken in the name of James Banks. Both transactions involved the extension of credit, and considerable time intervened in each instance before the deeds were executed. The Davis street lot was never conveyed to the plaintiff, though she paid for it and resided on it, but was conveyed, by the person from whom she bought, directly to the person to whom she sold, James Banks representing plaintiff in both transactions and collecting the money for which the property was sold. There was evidence of declarations and admissions by James Banks, tending to establish these allegations. There was also evidence to the effect that when James Banks bought the land in dispute he paid a part of the price and gave his notes for a series of deferred payments which he met as he drew his monthly wages. The witness who testified to this effect also testified that the lot purchased cost less than the price obtained for the lot sold, and that James Banks stated that he used "the balance of the money,” and that he bought the land in dispute for plaintiff
“If one person holds the title to property and another person has paid the purchase-money and has, therefore, a beneficial interest in the property, the law implies a trust, and the person who holds the legal title holds it as trustee for the beneficiary. If you find in this ease that James Banks, acting as the agent for Mrs. Killian, bought the Bellwood property and paid for it with Mrs. Killian’s money, and took the title to himself, the plaintiff in this case would have the right to recover. If you find that James Banks did not represent Mrs. Killian or did not buy the Bellwood property with Mrs. Killian’s money, but bought it with his own money and paid for it with his own money and took the deed to himself, the plain*646 tiff in this ease can not recover. It is not necessary, gentlemen, that the identical money, the identical bills or the ideptical coin, which James Banks may have received as the money of Mrs. Killian, should have been used in payment for this property; but it must have been Mrs. Killian’s money. To illustrate: Banks received $600, or other sum, for Mrs. Killian, as her money, to be used in the purchase of the Bellwood property, and, to further illustrate, he put it in the bank where he had other money, and drew a check upon the general account, and that check was paid, that would be paying with Mrs. Killian’s money; so, if he had the money and kept it or mixed it with his own money, and he paid for the Bellwood property with money that was partly his and partly Mrs. Killian’s by reason of it having been mixed, why that would be paying with Mrs. Killian’s money. Now these are merely intended as illustrations, and not to tell you anything that there is in the evidence in this case with reference to these facts, but simply to illustrate. I have stated to you that it must be the money of Mrs. Killian that paid for this property; that is subject to this qualification: If the money of Banks was substituted for the money of Mrs. Killian, that is to say, if Banks received money that belonged to Mrs. Killian, for the purpose of paying for the Bellwood property, but he did not use that money in paying for the Bellwood property, but kept it or used it for other purposes, for his own purposes, and thus intending to substitute his own money for the payment of the Bellwood property, intending thereby to carry out the instructions which he had received from' Mrs. Killian, 'and he substituted his money for the money of Mrs. Killian in paying for the property, then the trust would attach to that money and to the property which it purchased, and the plaintiff would have the right to recover in this ease. But if he had no such purpose, if he received the money of Mrs. Killian and did not use it to pay for this property, but used it or kept it for other purposes and paid for this property with his own money, intending to take the title to himself, his own purchase, then the plaintiff in this case could not recover, although you may believe that he had the money to pay for it and ought to have paid for it with that money; but if he did not and did not intend to substitute his money, to make the purchase for her account, then she could not recover in this case.”
It thus appears that in substance the court instructed the jury
5. The judge refused a written request to charge the following: “The plaintiff claims, among other things, that James Banks, the husband of the defendant in this case, after purchasing the property in dispute from Seago, and while in possession of the same, admitted that this property was the right and property of his sister, Mrs. Killian, and that he, Banks, had paid for it with the money of Mrs. Killian. Now, if you believe from the evidence that these admissions are true and were made at the time at which the said Banks was the owner of the property, then I charge you that such admissions would be binding upon Banks or any one holding under him; but if, on the other hand, you believe from the evidence, that Banks, in his lifetime, disposed of any part of the property in dispute, and that the title to the property or any part of the same had passed out of Banks prior to the time at which he is claimed to have made such admissions, then and in that event the admissions would not be binding, and would not affect the interest in the property that had passed out of Banks prior to the time at which such admissions are said to have been made; and I charge you that if you find from the evidence that James Banks at any time disposed of the property or any part of it, by gift or otherwise, then the burden would be on the plaintiff to establish that the admissions relied upon, if any, were made by Banks before the title to the property 'had passed out of him.” While this request is perhaps subject to criticism, in that the use of the words, “owner,” and “disposed of part of the property,” and “title to the property passed out of him,” ' might tend to intimate that as a matter of fact Banks at one time held the title to the property in his own right, the principle of law contained in the request was pertinent to the facts of the case, and on another trial should be given in charge; care being taken to couch it in such language as will eliminate any possible expression of opinion by the court as to the ownership of the property. Howard v. Snelling, 32 Ga. 195-203; Shields v. Blanchard, 74 Ga. 805; Marion v. Hoyt, 72 Ga. 117; 16 Cyc. 992; 5 Michie’s Dig. Ga. R. 320, 334.
6. The ruling announced in the 6th headnote does not require elaboration.
Judgment reversed.
Concurrence Opinion
specially concurring. We concur in the judgment, and also in the opinion except so much as relates to the ruling upon the competency of the evidence of witnesses delivered at a former trial, but who died since that trial; it appearing that if the witnesses had been living they would have been disqualified from testifying against the estate of a deceased person, on the .ground of interest.
Dissenting Opinion
dissenting. I do not think that the exceptions to the rulings made pending the trial nor those complaining of the charge to the jury show any material error.