180 Ga. 318 | Ga. | 1935
Joseph Jansen, W. R. Jansen, and others sued Earnest W. Jansen and Mrs. Bernice Jansen, alleging in their petition as follows: On December 13, 1931, Mrs. Emma Bertha Jansen, wife of one of the petitioners and mother of the remaining petitioners and of Earnest W. Jansen, died intestate, owning, among other property, two parcels of land in Fulton Comity, one known as 269 Ninth Street, and the other as 624 Rockmont Drive. Joseph Jansen was appointed administrator of her estate, and by proper order sold the said properties before the court-house door, and bought them in in his own name individually, at the same time agreeing with his children, although the deed recited an absolute conveyance, that he would hold the properties in trust for
Earnest W. Jansen and Mrs. Bernice Jansen filed demurrers, ■general and special, in which they insisted that the petition showed that at the time of the agreement alleged in the petition the plaintiffs had no interest in the property, and that the agreement was without consideration; that Joseph Jansen can not recover in any case, as he seeks to recover for a violation of his own agreement and for a breach of trust by himself; and that the petition sets up an express'trust, which is not-shown to be in writing. The demurrers were overruled, and the defendants excepted.
We are of the opinion that the court properly overruled the general demurrer. It does not appear from the facts as alleged that the plaintiffs had no interest in the property, or that the agreement on which they partly rely was without consideration. Nor does it appear that the plaintiff, Joseph Jansen, seeks to recover for a violation of his own agreement and for a breach of trust by himself. If these things are true, they can be pleaded and sustained by evidence.
The main and controlling question in this case is, whether, under the facts alleged in the petition, the petitioners were seeking to recover on an express trust which is not shown to have been made in writing, or whether the trust which they contend was created by the deed to Earnest W. Jansen in connection with the representations and promises made by him was an implied trust. Trusts are of two kinds, viz., express trusts, and constructive or implied trusts. Code of 1910, § 3731. Trusts are implied: “(!•) 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 partially in another. (2) Where, from any fraud, one person obtains the title to property which rightly belongs to another. (3) Where from the nature of the transaction it is manifest that it was the intention of .the parties that the person taking the legal title shall have no beneficial interest.” § 3739. It is the contention of the defendants in error that the allegations of the petition make out a constructive trust on the Ninth Street property referred to in the petition. We think the decisions of our court settle the proposition that where a conveyance absolute in form is
Judgment affirmed.