This case is controlled by the judgment rendered in Griffin v. Driver, 202 Ga. 111 (42 S.E.2d 368).

No. 16080. FEBRUARY 10, 1948. REHEARING DENIED MARCH 19, 1948. K. D. Griffin and others, in their equitable action against Frank Driver, alleged in brief: The defendant is the duly qualified executor of Mrs. Annie Glisson, deceased. G. W. Glisson and his wife, Mrs. Annie Glisson, were the owners of described real estate in Sumter County. When G. W. Glisson died in 1944, he was 88 years of age, and Mrs. Annie Glisson was at that time 86 years of age. The Glissons did not have any children. The petitioners are nieces and nephews of G. W. Glisson, and are his *Page 482 next of kin. In January, 1937, G. W. Glisson and his wife, Mrs. Annie Glisson, entered into a solemn, mutual, oral agreement that in the event G. W. Glisson predeceased his wife, his property would go to his nieces and nephews, subject to the use of his wife so long as she lived, and in the event the wife should predecease her husband, the property of the wife would go to her nieces and nephews, subject to the use of the husband so long as he lived. Upon the death of the husband intestate, the wife as sole heir took possession of his lands, and subsequently declared that she and her husband had made an agreement as above set forth. The wife at no time notified the petitioners, or either of them, that she was holding the property of G. W. Glisson adversely to them but, on the contrary, asserted that she was holding it under the agreement, and that she would carry out the agreement. By neglect, oversight, or mistake, Mrs. Glisson died without completing the agreement to put the legal title in the petitioners, thus defeating the agreement, unless a court of equity shall declare a trust, and declare the title to the property in the petitioners. Mrs. Glisson made a will which has been probated in solemn from. Frank Driver, as executor of the estate of Mrs. Glisson, is wrongfully in possession of the property of G. W. Glisson, and is using the property of such estate for his personal interest.

By amendment it was alleged: G. W. Glisson having died intestate, the legal title to the property was vested in Mrs. Annie Glisson and the beneficial interest was vested in the petitioners. After taking the property under such agreement to use it only so long as she lived, she breached her agreement and executed a will leaving all of her property to Frank Driver as sole devisee. Mrs. Glisson acquired the legal title to the property by operation of law, and in wailful fraud of the rights of the petitioners, and a court of equity should impress the property with a trust for the benefit of the petitioners. Mrs. Glisson acquired possession of the property as a life tenant, and could not in good conscience, law, or equity claim full title.

The prayers were for a temporary and permanent injunction, that a constructive trust be declared in favor of the petitioners, that the right of possession of said property be decreed in them, *Page 483 and for other relief. The defendant's general demurrers to the petition were sustained, and the exception is to that judgment. "A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside." Code, § 110-501.

In Griffin v. Driver, 202 Ga. 111, the plaintiffs in error urged their claim of title to the property in dispute. It is true that the claim of title urged in that case by the plaintiffs in error was in defense of an injunction suit brought by Driver to restrain the defendants from trespassing upon the lands, while here the claim of title is urged in an original action by the plaintiffs in error, wherein it is contended that the facts alleged show an implied or constructive trust for the benefit of the plaintiffs. While there is some variation in the nature of the actions, the allegations upon which the plaintiffs in error rely are essentially the same, and the present case is controlled by the former judgment. The plaintiffs in error are precluded from maintaining the present action by the former judgment as the law of the case. Rivers v. Brown, 200 Ga. 49 (36 S.E.2d 429), and authorities cited.

Judgment affirmed. All the Justices concur, except Bell, J.,absent on account of illness, and Wyatt, J., who took no part inthe consideration or decision of this case.