22 Ga. 574 | Ga. | 1857
By the Court.
delivering the opinion.
The action at law and the bill in chancery to enjoin that action, and to set aside the title on which the plaintiff relied in his action at law, were sirbmitted to the jury together by consent. This consent amounted to a dissolution of this injunction and the jury returned a verdict in favor of the plaintiff in the action at law for the premises in dispute. The-defendant moved for a new trial on four grounds as set forth in the statement of the case.
First: That the father entered into possession of the land. It is in proof that the son, David Burke, was at that time only fifteen years of age, and was under the dominion of his father, of course. This circumstance is entitled to but little consideration.
Secondly: That at the time of the execution of the deed, William Burke, the father, directed the deed to be made to his son David B. Burke, saying that he desired the deed made that way so that he could not spend it, and that he might have a permanent home for himself and his family. This has much the appearance of a trust, but it was in proof also that he said, while in possession of the land, that he had given it to his son David. This evidence was submitted to the jury. There was no evidence of indebtedness by William Burke at the time, to any one, to show mala fides, in the transaction. If it was given in a way that he could not spend it, it must have been given as an advancement, and not as a trust. But again, it was given in that way that he might have a permanent home for his family and himself, but he did not say that the remainder was not for his son. Finch vs. Finch, 15. Vesey Jr. 51. These things cannot well arise in this case; the deed is positive and absolute on its face, and is presumptively an advancement. There is no declaration of a trust in writing, and this case must be regarded in the same light, asa suit by the father or his personal representatives, against t he son, calling for a reconveyance. We do not think that
We think that the jury was Avarranted in finding as they did, under the charge of the Court, andaré therefore of opinion that the judgment of the Court must be affirmed.
Judgment affirmed.