140 Ga. 765 | Ga. | 1913
Plaintiff and defendant orally agreed to buy a tract of land. Both being without funds, it was further agreed
The contract between the plaintiff and the defendant was a nudum pactum. It amounted to no more than that the defendant was to secure the money from the hypothecation of his own land, together with the tract to be purchased, and, after the rents, issues, and profits amounted to the purchase-money, that the defendant was to make the plaintiff a deed to a half interest. The defendant did not advance any part of the purchase-money. He was to be compensated for manufacturing the timber- into lumber, the pro
If it be considered that mutuality and a consideration were supplied by the subsequent payments, then the contract will not be decreed to be specifically performed, because it rests in parol. The statute declares that specific performance of a parol contract as to land will not be decreed on account of partial payment, unless such partial payment is accompanied with possession of the land by the party making it, or there be possession of the land with valuable improvements. Civil Code (1910), § 4634. The plaintiff does not contend that he is in possession of the land.
It is contended, however, inasmuch as the plaintiff paid to the defendant certain sums of money and did certain work upon the land after the title became vested in the defendant, under an agreement that the balance of the purchase-money was to be received from the rents, issues, and profits, that upon an accumulation of an amount sufficient to reimburse the defendant a resulting trust arose. We do not think so. The code declares that whenever the legal title is in one person, but the beneficial interest, either from the payment of the purchase-money, or other circumstances, is either wholly or partly in another, a trust will be implied. Civil Code (1910), § 3739. A resulting trust which arises solely from the payment of the purchase-price is not created, unless the purchase-money is paid either before or at the- time of the purchase. Trusts implied from the payment of the purchase-money or a part thereof must result, if at all, at the time of the execution of the conveyance. Long v. King, 117 Ala. 423 (23 So. 534); Butterfield v. Butterfield, 79 Ark. 164 (95 S. W. 146, 9 Ann. Cas. 248); Keith v. Miller, 174 Ill. 64 (51 N. E. 151); Harris v. Elliott, 45 W. Va. 245 (32 S. E. 176).
The invalidity of the contract and the insufficiency of the petition were set up by demurrer, and the court erred in refusing to dismiss the petition.
Judgment reversed.