182 Ga. 362 | Ga. | 1936
Two daughters of S. E. Fiveash, deceased, filed a petition against their mother, sister, and two brothers, praying that the title'to certain real estate be decreed to be in plaintiffs and defendants as heirs of their father, who died in 1935; that Mrs. Susan Fiveash and P. L. Fiveash, the mother and one of the brothers of petitioners, be required to account to the plaintiffs for their share in certain money derived from the sale of live stock, etc., belonging to their father’s estate and sold by said two defendants; and that other personal property of the estate be divided between plaintiffs and defendants as heirs at law of their father and husband. It is alleged that plaintiffs and defendants constitute all the heirs at law of the deceased, and are sui juris; that in 1925 S. E. Fiveash bought a described tract of land from Spooner for $3000, which amount he paid with his own funds, but had title thereto made to his wife, for the reason that “shortly prior thereto the Bank of Donalsonville failed, and there was considerable claims against S. E. Fiveash on alleged liability as a stockholder in said bank, which was in fact not a liability, but an alleged liability, and that title was taken to petitioners’ mother until said claim could be paid, settled, or compromised;” that the father of petitioners also acquired title to another described tract of land the title to which is in their mother, but the purchase-price thereof was paid by S. E. Fiveash, their father; “that although title was taken to their mother, that in truth and in fact it was the property of their father and was understood and known by her and the other respondents to be a fact;” that petitioners’ mother,
While there were both general and special demurrers to the petition, and the court sustained all demurrers, counsel in their briefs apparently concede that the case is dependent upon the ruling on general demurrer. After a careful consideration of the record and briefs of counsel, we have reached the conclusion that the court did not err in sustaining the general demurrer and dismissing the action. The controlling issue is whether the allegations of the petition are sufficient to create an implied trust in the father of the plaintiffs, as they contend, or whether the facts alleged show anything more than a gift by their father to his wife, one of the defendants. “As between husband and wife, parent and child, and brothers and sisters, payment of purchase-money by one, and causing the conveyance to be made to the other, shall 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.” Code of 1933, § 108-116. On demurrer, pleading must be strictly construed. As to the tract of 397-1/2 acres, the petition alleges that the plaintiff’s father, S. E. Fiveash, bought the land from Spooner with his own money, but that the deed was made in the name of his wife because of “ alleged liabilities which were not liabilities,” in connection with the Bank of Donalsonville, in which he owned stock. If it could be held that the intention of S. E. Fiveash was entirely blameless, then the allegation of the petition just referred to would be worthless, because it would only tend to show that he owed no debts, and in that event he would have had a perfect right to have the deed made to his wife as a gift, which it would be presumed to be under the Code, just quoted. However, construing the petition as a whole, it is plain that the petitioners intended to convey the meaning that the title to the
We have dealt first with the portion of the petition relating to the real estate described therein, for the reason that if the peti
Judgment affirmed.