139 Ga. 604 | Ga. | 1913
Thomas B. Wheeler Sr. bought certain land from Brown in 188.2, and took a warranty deed in fee simple thereto. In 1889, after Wheeler’s death, Brown undertook to sell and convey the .mineral interest in the land, though he had no title. About 1906 Brown died, leaving as his executor one of the sons of Wheeler. Administration was taken on the estate of Wheeler, and the administrator brought suit against the executor of Brown, seeking to recover the amount of purchase-money received by Brown for the mineral rights, together with interest thereon. This court held that he had no right of action. Wheeler v. Wheeler, 135 Ga. 603 (69 S. E. 1112). In the opinion Mr. Justice Holden remarked that “If Brown undertook to sell and convey the mineral interest in his own name in behalf of the heirs at law of Wheeler, if any right of action exists against Brown, or his estate, for the amount he received in making such sale, such right of action would be in such heirs.” 'Thereupon the heirs brought suit in 1911, alleging, that Brown had received the purchase-price' of $1,660 in trust for the widow and children of Wheeler, and held the sum, as he claimed, for the use and benefit of the widow and children of Wheeler, to be paid to them when the youngest child should become of age; and that he never denied during his life that the land was that of Wheeler or that his heirs were-entitled to the money, but said he would make it all right when the youngest child should become of age. They claimed that this made a continuing trust, and that, as they respectively learned the facts, they relied on his promise. On the trial, the presiding judge overruled a demurrer to the petition, and directed a verdict for the plaintiffs. A motion for a new trial was overruled, and the defendant excepted.
The petition was not demurrable as a whole, but was demurrable in so far as it sought to set up an express trust by parol agreement. The allegation in the ninth paragraph, as to what the plaintiffs believed that Brown would have done, had he lived, was subject to special demurrer. The demurrer did not set up that the action appeared to be barred by the statute, or that the demand was on its face stale; and that point arose only under the plea and evidence.
It will be readily seen that this falls far short of showing any express trust or express contract between Brown and the heirs of 'Wheeler. Considered as a suit for money had and received, there is nothing which would toll the statute as to each heir on arriving at majority. The evidence indicates that one of Wheeler’s children was less, than twenty-four years of age when the suit was brought, and that one had died, leaving a child who was still a minor when the case was tried; but whether the parent of such child was barred before death does not appear.
The defendant was I. H. Wheeler, the executor of Brown, who was also an heir of Thos. B. Wheeler. He was not a plaintiff.
Judgment reversed.