44 S.E.2d 548 | Ga. | 1947
1. Where a petition seeks to establish an express trust, the presumption upon demurrer that the proof will be established in writing is overcome where it is clear from the allegations that only parol declarations are relied upon. 2. The allegations of the original petition in the instant case, standing alone, would be an attempt to assert an express trust by parol, and this cannot be done; but the allegations of the amendment are sufficient to allege inceptive fraud, as distinguished from the failure to perform some act in the future according to an agreement, which together with the other allegations would set forth a cause of action for cancellation.
By amendment it was further alleged that the statements and representations made by Earnest Pantone were false and fraudulent, that he knew they were false and fraudulent at the time he made them, and that they were made for the purpose of inducing the petitioners to sign the deed; that they signed the deed for the reason that he was their brother and they had implicit confidence in him and believed what he said; and that the false and fraudulent statements were made for the purpose of taking advantage of them and getting the title in his own name to their detriment.
There was a prayer for injunction, cancellation, and process. Demurrers, both general and special, to the petition as amended were overruled. The sole exception is to the order overruling the general demurrer.
1. Where a petition seeks to establish an express trust, upon demurrer it will be presumed that the proof will be established in writing unless the contrary appears. Eaton v. Barnes,
2. The allegations of the original petition, to the effect that the grantee in the deed agreed to hold the same as a home for the other children so they could use it as a home just as they did during their mother's life, standing alone, would be an attempt to assert an express trust by parol and engraft it on a deed; and this cannot be done. An express trust cannot be engrafted on a deed by parol. Jones v. Jones,
The cases relied upon by the plaintiff in error are distinguishable as instances where there has been an effort to engraft an express trust upon a deed by parol, where no question of fraud in the procurement was made, or else where the allegations were not sufficient to show fraud.
Applying the above principles, the judge did not err in overruling the general demurrer interposed by the defendant.
Judgment affirmed. All the Justices concur, except Wyatt, J.,who took no part in the consideration or decision of this case.