176 Ga. 874 | Ga. | 1933
In 1914 H. G. Green married. The defendant in the present action at that time became his wife. They lived together until 1927, but subsequently his wife obtained a divorce and married, and thus became Mrs. Emily C. Bryant. In 1918 Green bought a lot and received a bond for title thereto, but upon payment of the purchase-money he had the deed made to his wife, she having expressed a desire that title to the property be in her name, with the understanding between petitioner and defendant that the property should in fact belong to him, and not be disposed of by his wife, “but the title thereto merely held by her for petitioner.” He alleges, that, during the period when the parties lived together, two dwelling-houses and a garage were erected on the property, the entire cost of their construction being borne by the petitioner, who also paid the entire purchase-price stipulated in the bond for title; that the deed, though executed to the wife as grantee, was always retained in petitioner’s own custody. Until a short time before the filing of the petition all rents were collected by petitioner and all taxes and insurance paid by him, and the defend
It is clear that the only question presented is whether the petition is sufficient to authorize a jury to find that, though the legal title was placed in Mrs. Green (now Mts. Bryant), the equitable title was in fact in Green, the husband, as a resulting trust. The court below held that the circumstances detailed in the petition (admitted by demurrer to be true) were sufficient to impose an implied or constructive trust upon the property described. It appears from an amendment filed in response to special demurrer that the statements made by the wife to induce the execution of the deed were “verbal” or oral; and since under the Civil Code (1910), § 3733, an express trust can only be created by writing, the plaintiff must recover, if at all, upon an implied trust. Prima facie from the relationship of the parties, husband and wife, there would arise the presumption of a gift. But this presumption may be rebutted, and the rebuttal may be based upon oral evidence. Implied or constructive trusts afford an instance of an exception to the statute of frauds. §§ 3735, 3739, 3740. This has long been held by this court. “Express trusts are those created and manifested by agreement of the parties. Implied trusts are such as are inferred by law from the nature of the transaction, or the conduct of the parties.” § 3732. When the facts show the existence of an implied trust, equity requires no more than the trustee would be required to do in good faith and good conscience. “Trusts are implied—
However, we consider the principle now involved to be controlled by an older adjudication of this court, that of Wilder v. Wilder, 138 Ga. 573 (75 S. E. 654). It is true that in the Wilder case the relationship was that of mother and son, rather than husband and wife as in the case at bar; but the principle stated in the Civil Code (1910), § 3740, is the same as to both relationships. In the Wilder case Mr. Presiding Justice Evans, speaking for the court, said: “As between parent and child, payment of the purchase-money by one and causing the conveyance to be made to another will be presumed to be a gift; but a resulting trust in favor of the one paying the money may be shown and the presumption rebutted. If. the mother bought the property with her own money
