Pantone v. Pantone, 44 S.E.2d 548

Pantone v. Pantone

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.

No. 15978. OCTOBER 15, 1947. Clifford, Tony, and Moley Pantone filed a petition against their brother, Earnest Pantone, alleging: that at the death of their mother they all inherited from her a certain described house and lot in Americus, together with household and kitchen effects; that a few months after their mother's death Earnest Pantone solicited all of the brothers that he be permitted to remain in the home, and that, if they would make him a deed to the lot, he would hold it as long as he lived as a home for them, and it would always be their home and they could come and go and use it as a home just as they did during the time their mother lived; and that he further promised to pay all taxes, make it his home, keep up the repairs, look after it generally, and keep it in good condition. It was further alleged: that they yielded to his persuasion and solicitation and executed a deed to him in July, 1940; that in April, 1947, he married, moved his wife into the home and claimed it as his *734 individual property, and asserted that the plaintiffs had no interest in the house and lot; and that in the event of his death his wife would apparently inherit the property. The copy of the deed attached to the petition was a plain warranty deed, reciting the consideration as one dollar and other valuable consideration.

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,121 Ga. 548 (3) (49 S.E. 593). We find nothing in the petition to authorize an interpretation that any agreement alleged could be established in writing; but from the petition it is clear that the conditions under which Earnest Pantone was alleged to be holding the property described in the deed were made only by parol declarations.

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, 196 Ga. 492 (26 S.E.2d 602), and citations. 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. Williford v. Swint, 181 Ga. 44 (181 S.E. 227). It is here alleged that *735 the promise of the grantee was the consideration inducing the execution of the deed, and that it was made with the present intention on the part of the grantee not to comply with it, which together with the other allegations would set forth a cause of action for cancellation. Brinson v. Hester, 185 Ga. 761 (196 S.E. 412); Schneider v. Smith, 189 Ga. 704 (7 S.E.2d 76).

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.