Walker v. Brown

104 Ga. 357 | Ga. | 1898

Cobb, J.

This case presents a contest between one of the •children and heirs at law of an obligee in a bond for titles upon which the greater part of the purchase-money had been paid, on the one side, and on the other a person who, with notice of the outstanding bond for titles, had acquired title to the premises in controversy through a conveyance from the obligor of the bond for titles, such conveyance having been made, as alleged, in direct violation of the contract contained in the bond for titles. The father of the petitioner purchased the land in his own name, and it is to be presumed for his own use. The petitioner seeks to attach to this purchase a trust in her favor, by setting up that she had performed certain services for and on behalf of her father, and that it was the avowed purpose of her father in purchasing the land to hold the same for her benefit, the consideration being the services which she had rendered. Services rendered by a child even after majority are not a sufficient consideration to support a contract, unless there has been an express promise on the part of the parent to pay for such services, or the surrounding circumstances plainly indicate that it was the intention of both parties that compensation should be made. O’Kelly v. Faulkner, 92 Ga. 522. While a parent may undertake to pay a child for services rendered by him, this must be done before the services are performed. If such services are rendered by the child to the parent without any express undertaking on the part of the latter to pay for them, and not under circumstances from which a promise will be implied, then it is to be presumed that such services were rendered on account of natural duty owed by the child to the parent, and an express promise made after the rendition of .such services is entirely without consideration to support it. Hudson v. Hudson, 90 Ga. 581; Field on Parent and Child, .§§69, 71. It not being pretended that the allegations in the petition make a case where the money of the petitioner was used by the parent in the purchase of the land and the title wrongfully taken in the parent’s name, there can be no implied trust arising in favor of the child. The case not falling within the doctrine of implied trusts, if any trust was created at all it was an express trust; and there being no writing in which the terms of the trust are declared, it fails as an express trust. Civil Code, § 3153. The whole purpose of the petition being to engraft upon the property which was bought in the parent’s name a trust in favor of the child, and the facts alleged not being sufficient to create an express trust or raise an implied trust, the petition sets forth no cause of action in the plaintiff’s behalf. If the obligor in the bond for titles, in disregard of the contract made with the obligee, has sold the property to one who was acquainted with, all the facts and bought with full knowledge of them, then it may be that the legal representative of the deceased-obligee would have a right, upon tendering the balance due under the contract represented in the bond for titles, to compel a performance by the purchaser of the contract of-his predecessor in title; or it may be that if a petition was brought by the heirs at law of the obligee, with allegations showing that there were no debts and no necessity for an administration, their rights as heirs at law might be set up in such a suit; but what may be the rights of either the legal representative or of the heirs at law is not now decided. The petition makes no such case, and, as it stands, sets forth no cause of action, and there was no error in sustaining a demurrer to the same and dismissing it.

Judgment affirmed.

All the Justices concurring.