148 Ga. 410 | Ga. | 1918
Lead Opinion
Simpson Groeery Co., plaintiff in a ñ. fa. founded upon a judgment dated August 30, 1898, had the execution levied, on the 4th day of February, 1916, upon certain lots of land in the City of Cedartown, as the property of the defendant in fi. fa., J. C. Knight Sr. J. C. Knight Jr. interposed his claim against the levy. Upon the trial of the case possession by the defendant in fi. fa. at the time of the levy was admitted by the claimant. The trial took place on September 1, 1916, and resulted in a verdict in favor of the claimant. The plaintiff made a motion for a new trial, which was overruled.
1. Three deeds, dated May 19, 1913, executed by the claimant and purporting to convey the three lots of land in question to the
We are of the opinion that the court properly allowed the introduction of this testimony. No other pleadings in a claim case were necessary to authorize the introduction of evidence tending to show that the equitable title to the property was in the claimant. Frick Co. v. Taylor, 94 Ga. 683 (21 S. E. 713). And the evidence itself was admissible under the rule, that, “In all cases where a trust is sought to be implied, the court may hear parol evidence of the nature of the transaction, or the circumstances, or conduct of the parties, either to imply or rebut a trust.” Civil Code, § 3741. This was not an attempt to engraft an express trust by parol upon the written deed, and it does not in any way violate the inhibition against varying or contradicting the terms of a written instrument by parol testimony. It only goes to the extent of establishing the contention of the claimant, that the equitable interest in the land was in him and the legal title for a specific
From the report of the case of McKinney v. Burns, 31 Ga. 295, it appears that one Burns, the son-in-law of McKinney, executed to his father-in-law a deed to certain realty, and at the same time released a debt to him, provided that he would convey title to the property in trust to the wife and children of the grantor. No money was paid by the father-in-law, McKinney, to Burns, the grantor, nor was any note given, nor any other consideration. McKinney acknowledged this agreement to the day of his death, but died without having executed a trust deed in accordance with the agreement. The administrator of McKinney advertised the land for sale, and Burns and his wife and children filed a bill in equity, seeking injunction to prevent the sale and to have a conveyance executed according to the agreement between McKinney and Burns, or to have a resulting trust'declared in favor of Burns; and upon the trial of the case it was decreed that this should be done. In that case this court held: "It is contended that a parol trust to the land can not be engrafted on the absolute deed from Burns to McKinney. There is no attempt to do this. The legal title was conveyed to McKinney merely to enable him to pass it over to Mrs. Burns and. her children. The deed is founded upon no consideration good or valuable. The title was conveyed to him for a particular purpose. It operates as a power merely. Powers of attorney are frequently executed in this way, and any attempt to hold or appropriate the land under such a power would constitute a fraud, against which equity would grant relief.” We are of the opinion that in the instant case the deed operated as an instrument creating a power; and that if this suit were between the grantor and the grantee, and the grantee under the facts were
2. Of course, if the fi. fa. levied in this case had been based upon a judgment which grew out of a debt for credit extended on the faith of the ownership of the property by the defendant in execution, a different question would have been presented.
The ruling which we have made above is controlling in the case, as the contentions of the claimant were established by uncontroverted evidence; and-it is unnecessary to pass upon the admissibility of certain letters which were admitted in evidence over the objection of the plaintiff.
Judgment affirmed.
Dissenting Opinion
dissenting. I can not concur in the opinion of the majority of the court. In 1837 the legislature passed an act, as follows: “Whereas it is now the practice, in some of the circuits of this State, to admit oral evidence to prove that deeds and bills of sales, absolute upon their face, were intended as mortgages, or securities for the payment of money or other thing only, without any charge of fraud in obtaining them, and whereas such practice may lead to serious injuries to the rights of the good people of this State over their property, and may present strong inducements to the commission of frauds and perjuries; for remedy whereof, be it enacted, that from and immediately after the passing of this act, oral evidence shall not be received in any courts of this State to show that a deed or bill of sale absolute upon its face,
My conclusion is that in the absence of accident, fraud, or mistake, a deed absolute in form and accompanied with possession of the property can not be proved by parol evidence, at the instance of a party, to have been executed for the purpose of enabling the grantee to borrow money on the property for the grantor. Mays v. Shields, 117 Ga. 814 (45 S. E. 68). What was held in McKinney v. Burns, 31 Ga. 296, and Holmes v. Holmes, 106 Ga. 858, relied on in the majority opinion, is not controlling in the present case, for at least one good reason, and that is, in neither of those cases did possession of- the property accompany the delivery of the deed.
I am authorized by Justice Gilbert to say that he concurs in this dissenting opinion.