26 S.E.2d 602 | Ga. | 1943
1. Where, as alleged by a brother in a petition against his sister, their father executed to the sister a deed to land, absolute upon its face, with the agreement between all of them that the sister was to deed a specified portion of the land to the brother whenever he or the father requested its execution, such an agreement, if properly executed in writing, would create an express trust.
(a) Where in the trial to enforce such an agreement the plaintiff tendered *493 no written evidence, but sought to establish the agreement by parol testimony, this was an effort to assert an express trust and engraft it on a deed by parol, which can not be done.
(b) The only evidence to establish an express trust being oral testimony, the court did not err in directing the verdict for the defendant.
2. None of the grounds of the motion authorized a grant of new trial.
It was alleged, that, while the deed from the father recited a consideration of one thousand dollars, in fact no money consideration was paid; that under the terms of this agreement Lillie Jones had already deeded to two of the (six) children, Ben O. Jones and Sam C. Jones, their part; that the father died in March, 1939, and that on numerous occasions since the execution of the deed on September 19, 1931, the plaintiff had requested his sister to execute to him a deed conveying the forty acres in question, but she had failed and refused so to do. He prayed, "that by proper decree of the court title be decreed to petitioner to the forty-acre tract of land described in the petition;" and for general relief.
The defendant denied the material parts of the petition. Upon the trial petitioner sought to establish the agreement by parol testimony. At the conclusion of the evidence the trial judge directed a verdict for the defendant.
1. The initial approach to a decision in the instant case requires an analysis of the petition, in order to determine whether the suit is seeking the specific performance of a voluntary promise, whether it seeks to recover the land on the basis of an implied trust, or whether it should be construed as seeking a recovery on an express trust. "The cardinal rule for the construction of a petition is to ascertain the intention of the pleader, and this is done by a consideration of all the allegations and prayers. Cook v. Grimsley,
The whole tenor of the petition bases the right to have the title decreed in petitioner by virtue of the contract between the father, sister, and petitioner, made at the time of the execution of the deed from the father to the sister. All of the allegations are based upon this agreement, and it is expressly relied upon as an enforceable obligation. Such an agreement, if properly executed in writing, would establish an express trust, and would authorize a recovery *496
in accordance with the prayer of the petition. But upon the trial the plaintiff sought to establish this agreement, by oral testimony. In so undertaking the plaintiff attempted to assert an express trust by parol, and engraft it on a deed; and this cannot be done. "Trusts are either express or implied. 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." Code, § 108-104. "All express trusts shall be created or declared in writing." § 108-105. See Roughton v. Rawlings,
2. In view of the foregoing ruling it is unnecessary to discuss in detail the grounds of the motion for new trial. Grounds 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 20, 21, 24, 25, 26, 27, 28, all designate verbal testimony designed to establish an express trust, and allege error in not submitting the case to the jury. Grounds 1, 2, 3, 4, 14, 22, 23 allege error in rejecting oral testimony to establish the express trust. Ground 19 is incomplete and presents no question for review. While we have examined the grounds of the motion and disposed of them as above indicated, many are incomplete and present no question for review. A ground of a motion *497
for new trial should be complete in itself, and other parts of the record will not be looked to for the purpose of making the ground certain or definite. Fidelity Casualty Co. v.Geiger,
Judgment affirmed. All the Justices concur. *498
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