Hawkins v. Hawkins

150 Ga. 61 | Ga. | 1920

Hill, J.

(After stating the foregoing facts.)

1. The Civil Code (1910), § 3739, provides that "Trusts are implied whenever the legal title is in one person, bnt the beneficial interest, either from the payment of the pnrehase-money or other circumstances, is either wholly or partially in another.” According to the allegations of the petition in this case, the property in controversy was purchased by the plaintiffs’ father with money whicn had been inherited by his wife, their mother, and under her direction the money was invested in the property in controversy; but instead of having the deed executed in the name of his wife, he took a deed in his own name. It is alleged that from that time until the date of his death E. A. Hawkins, in whose name the legal title was, recognized the 'property as that of his wife. Under these circumstances, which are set out more in detail in the statement of facts, we think that a trust is implied, and that the husband as trustee held the property for his wife, the cestui que trust, and so held it at the time of her death, when he and her children became by inheritance tenants in common of the property. In the case of Barter v. Barter, 125 Ga. 226 (53 S. E. 1017), it was held that “Whenever a husband acquires the separate property of his wife, with or without her consent, he must be deemed to hold it in trust for her benefit, in the absence of any direct evidence that she intended to make a gift of it to him.” There is nothing in the petition to indicate that the wife intended the money as a gift or loan to her husband, but on the contrary it is alleged that it was to be invested in a home for the wife, and that the husband recognized the property as that of his wife as long as he lived. On demurrer these allegations must be taken to be true, and if they be true, then they negative the idea of a gift or loan of the money to the husband. It was also held in the Barter case, supra: “As long as the husband is in possession of the property, using it for the wife’s benefit and rcognizing her ownership, no lapse 'of time will bar the wife from asserting her title or calling the husband to an accounting.” See also, to the same effect, Jenkins v. Georgia Investment Co., 149 Ga. 475 (100 S. E. 635). This, we think, is an answer to the contention that the present suit is a stale demand, having been brought thirty-six years after the father acquired title to the property in 1882. See also Brooks v. Fowler, 82 Ga. 329 (9 S. E. 1089); Parker v. Barnesville Savings Bank, 107 Ga. 650 (34 S. E. 365); Burt v. Kuhnen, 113 Ga. 1143 (39 S. E. 414); Guinn v. Truitt, 148 Ga. 112 (95 S. E. 968). But it is insisted that the father, during the lifetime of plaintiffs’ mother, sold off a part of the property purchased with the mother’s money, thereby asserting his individual claim to the property adversely to that of his wife. The reply to this is that the allegations of the petition are to the effect that the proceeds of the sale of the property by the husband in the instant case were- devoted, at least in part, to improving the wife’s property; and therefore, under the allegations, whatever was done in this regard will be considered as having been done by the husband as trustee for the benefit of the trust estate, nothing appearing to the contrary. A case similar in its facts to the one now under review was recently decided by this court in accordance with the ruling here made. McDowell v. Donalson, 149 Ga. 600 (101 S. E. 578).

From what has been said we reach the conclusion that the petition set forth a cause of action, which was not barred, and the court did not err in overruling the demurrer.

Judgment affirmed.

All the Justices concur, except Beck, P. J., absent on account of sickness.