Swift v. Nevius

138 Ga. 229 | Ga. | 1912

Lumpkin, J.

(After stating the foregoing facts.) An action of ejectment was brought against C. J. Swift, upon the demises of W. C. McFarland, Frank Nevius, and others. The defendant filed an equitable defense as to an undivided half interest in the land, and this was later amended. The plaintiff filed general and special demurrers to the answer as amended. The court sustained the general demurrer, and upon the making out of a prima facie case by the plaintiff and the failure of the defendant to introduce any evidence, directed a verdict for the plaintiff, and a judgment was entered accordingly. The defendant excepted, and specifically assigned error on the sustaining of the demurrer to his equitable defense.

1. A motion to dismiss the writ of error was made; but, under the ruling in Lyndon v. Georgia Ry. &c. Co., 129 Ga. 353 (58 S. E. 1047), it is overruled.

2. The essence of the equitable defense, as to the Blue Spring place, is that the defendant and McFarland entered into an agreement to buy the property together. McFarland was to put up the money for expenses and for the purchase-price, if the land was obtained. Swift, the defendant, gave certain valuable information which he had acquired as to the location, water supply, etc., and was to negotiate for the purchase, and perform certain other services. He fully complied with his agreement, and thus in effect paid his part of the purchase-price. For convenience in exploiting the property in connection with a plan to furnish water to the City of Columbus, in which a certain engineering company was to take a part, the deed was taken in the name of McFarland, by agreement between him and the defendant and for the benefit of both. The defendant took possession of the property, and has managed it in accordance with the agreement between him and McFarland on that subject. If Nevius, a lessor of the fictitious plaintiff, has taken a conveyance from McFarland, he has done so with full knowledge of the facts. If' these facts are true, as the demurrer admits them to be, an implied trust exists in favor of the defendant as to a half interest in the Blue Spring property. Civil Code (1910), § 3739. This is not an effort to set up an express trust by parol; nor is the defense subject to the objection that it is an effort to enforce a parol promise contemporaneous with the making of a deed. That there are many vague and indefinite allegations contained in the defendant’s pleadings, is undoubtedly true, as contended by counsel for the plaintiff. But enough clearly and distinctly appears to save the case from dismissal on general demurrer; and the judge of the trial court did not pass on the special demurrer, of which there were some forty or fifty grounds.

In reference to what was referred to as the Barnes Creek watershed, the allegations of the equitable plea were entirely too indefinite for this court to determine whether the defendant has any equitable right as to it or not. But 'if not, this did not authorize the dismissal of the entire equitable defense on general demurrer, the action of ejectment having been brought to recover the Blue Spring place, and the defendant having set up an equitable right as to it, as above indicated.

Judgment, reversed.

All the Justices concur.