Weldon v. Weldon, 152 Ga. 550

Weldon v. Weldon

152 Ga. 550 | Ga. | 1922

Hill, J.

(After stating the foregoing facts.)

1. In this State, on the death of one intestate, realty descends direcüy to the heirs at law of such intestate, subject to be administered by his legal representative, if there be one, for the payment of debts and for the purpose of distribution. Civil Code (1910), § 3657. Hnder the allegations of the petition, even if the land in controversy vested in the plaintiffs as heirs'at law of John-Hodges, their grandfather, the title became divested by the administrator’s sale; it not appearing from the petition that the sale was irregular for any reason, but on the contrary that the sale was had in the regular course of administration. Cook v. Cook, 67 Ga. 381 (3). Therefore the plaintiffs can not recover on the theory that the legal title to the land in controversy is in them as heirs at law of their deceased grandfather.

2. It is alleged in the petition that the defendant, I. J. Weldon, did not buy, and does not hold, the land in controversy as his own, but that he bought in the land at the administrator’s sale, not paying his own money for it, but bought it for the plaintiffs, the con*553sideration being their share in their grandfather’s estate. And it is insisted that this constitutes an implied trust in favor of the plaintiffs. Trusts are implied when 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. Whether the deed is in terms a trust deed does not appear from the petition, which alleges that the deed was never recorded and has been withheld by I. J. Wbldon from the plaintiffs, so that they are unable to know the exact terms of the deed; but.the petition does allege that the defendant purchased this property for the use and benefit of the plaintiffs,' the consideration being their interest in their grandfather’s estate. On demurrer this allegation must be taken as true, whether in point of fact it is true or not; and we are of the opinion that if the defendant did buy in this property for the plaintiffs on the consideration stated, a trust would be implied in their favor; and' although the deed might have been taken in the name of the defendant, he will be held to hold it in trust for the plaintiffs.

3. It is insisted that the suit can not be maintained, for the reason that the plaintiffs have been guilty of laches in bringing it; that about forty-five years have elapsed since the death'of the plaintiffs’ grandfather and the making of the deed to the defendant, and therefore that they 'have been so negligent that a court of equity will not aid them in recovering. But the petition as to this alleges, as set out in the foregoing statement of facts, that plaintiffs, only within two or three months of the filing of the petition, learned for the first time that the land in controversy was acquired by their father from their grandfather’s estate for their use and benefit. This being true, it can not be said as matter of law, under all the facts alleged in the petition with reference to the concealment of the deed and its not being put on record, that the plaintiffs have been guilty of such laches as will bar them of recovery in case they support all the allegations of the petition on the trial of the case by competent evidence.

Venable v. Burton, 129 Ga. 537 (59 S. E. 253); Kelly v. Hamilton, 135 Ga. 505 (3), 507 (69 S. E. 724).

In view of what has been said, we think the petition set out a cause of action as against the demurrer filed, and that the court erred in sustaining the demurrer and in dismissing the case.

Judgment reversed.

All the Justices concur.