Stern v. Howell, 160 Ga. 261

Stern v. Howell

160 Ga. 261 | Ga. | 1925

Hines, J.

(After stating the foregoing facts.')

It is true beyond question that a deed absolute upon its face and accompanied by possession of the property can not be proved, at the instance of the parties, by parol evidence to be a mortgage only, unless fraud, accident, or mistake in its procurement is the issue to be tried. Civil Code (1910), § 3258; Hall v. Waller, 66 Ga. 483; Mitchell v. Fullington, 83 Ga. 301 (9 S. E. 1083); King v. Herrington, 158 Ga. 148 (122 S. E. 879). By the terms of the cited section of the Code, and by the cases referred to, the principle announced in said section and decisions is applicable only *266where the parties to deeds absolute in form undertake to prove by parol that such instruments are mortgages only. In this case no party to the deeds involved is undertaking to prove by parol that they are only security for debt. This principle of the above section of the Code is not applicable to a case seeking to set up an implied trust. Jenkins v. Lane, 154 Ga. 454 (36) (115 S. E. 126).

Do the allegations of the petition raise an implied trust in favor of the plaintiff? A trust is 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.” Civil Code (1910), § 3739; Rives v. Lawrence, 41 Ga. 283; Bailey v. Layfield, 157 Ga. 546 (122 S. E. 193). In the first count of the petition it is alleged that the plaintiff bid off at judicial sale the Wheeler tract of land at $825; that of this sum he paid out of his own funds $25; that he borrowed from the defendant the sum of $800 with which to pay the balance of the purchase-money, under an agreement by which the defendant was to be secured by deed direct into him to this property from the seller at the judicial sale, and by the deposit of warehouse receipts for four bales of cotton, all of which was done, and upon payment of the money so borrowed by the plaintiff the defendant was to convey this property to him; and that the said four bales of cotton were afterwards sold for $449, which was paid to the defendant upon the money so borrowed from him by the plaintiff. This makes a typical case of implied trust. The legal title is in the defendant. The beneficial interest is partially in the plaintiff by payment of $25 of the purchase-price, and by the deposit by him of certain warehouse receipts for four bales of cotton with the defendant, to secure the money borrowed from him to pay the remainder of the purchase-money.

In the second count it is alleged that the plaintiff purchased the Born tract at the price of $2500, of which sum he paid to the seller out of his own funds $1300; that he borrowed $1200 from the defendant with which to pay the balance of the purchase-money, under an agreement that the seller was to make the deed to the defendant as security for the $1200, which was done; and that on payment of the latter sum with interest the defendant was to convey this property to the plaintiff. Eor the reasons assigned *267above in dealing with the Wheeler tract, these facts created an implied trust in favor of the plaintiff in the Born tract. There is nothing to the contrary of what we rule in the cases of Lyons v. Bass, 108 Ga. 573 (34 S. E. 721), Ray v. Union Savings Bank, 136 Ga. 745 (72 S. E. 26), and Houston v. Farley, 146 Ga. 822 (92 S. E. 635). In those cases the parties had not paid or secured any part of the purchase-money.

“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 (1910), § 3741.

Applying the principles above ruled, the trial judge did not err in overruling the motion of the defendant to dismiss the petition of the plaintiff.

The rulings made in the first, second, and third divisions of the opinion dispose of all the assignments of error embraced in the motion for new trial, based upon the admission of evidence and upon the instructions of the court to the jury, adversely to the defendant, if there was evidence to establish the cause of action set out in the second count of the petition. It is insisted by counsel for the defendant that there is no such evidence. It matters not whether the evidence establishes the cause of action set up in the first count of the petition or not, as the jury found for the defendant on this count. Errors, if any, committed upon the admission of evidence and in the instructions of the court as to this count, for this reason, would not require the grant of a new trial.

As to the Born tract, it is insisted that the evidence discloses that the plaintiff did not pay any part of the purchase-price of this tract. To this contention we can not agree. It appears that Mrs. Born and her husband were equally interested in the Born tract, although the title to this lot was in her. The plaintiff bought out the interests of b.oth, and had to pay for both interests. He turned over to the wife for the husband an automobile and certain notes in payment of his interest, and the defendant paid the $1200 which the plaintiff was to pay for the wife’s interest; tailing deed to the property from the wife. Thus the plaintiff paid part of the purchase-money with his property, and the remainder of the purchase-price with money which he borrowed from the defendant. In these circumstances an implied trust arose in behalf of the plain*268tiff in this tract. In view of this situation, we can not say that the evidence fails to establish the cause of action set out in the second count. This being so, the verdict is not contrary to the law; and the trial judge did not err in refusing a new trial.

Judgment affirmed.

All the Justices concur.