Estes v. Estes , 205 Ga. 814 ( 1949 )

1. Where a deed to realty is executed to two grantees, one of whom pays a part of both the initial and subsequent payments to retire a loan on the property, and such payments amount to more than his portion of the undertaking, an implied trust upon the interest of the other grantee is established in proportion to the amount of purchase-money paid thereon.

2. The exception to the charge as to presenting the issues to the jury, when considered in connection with the whole charge, is without merit.

(a) Direction is given that the judgment be amended as provided for in the corresponding division of the opinion.

3-6. Grounds 5, 6, 7, 8, and 9, of the amended motion are without merit.

No. 16741. SEPTEMBER 16, 1949. This is a suit by a father against his son, originally praying for reformation of a deed, but as subsequently amended, seeking to establish an implied trust upon a house and lot at 141-143 Georgia Avenue, S.W., Atlanta, Georgia. The property was purchased April 16, 1941, and the deed executed jointly to the father and son. The grantor was also a party defendant.

Evidence for the father showed that, at the time the property was purchased, he and his wife and the son and his wife rented and resided in the house. The property was purchased by him from Mrs. Ruth Allen, and at the time of the execution of the deed the father paid her $1582.21, which he borrowed from a friend, without security, and paid back monthly. There was an outstanding loan on the property in the amount of $1165.92, due a loan association, which was payable $15 per month. The deed was made subject to this loan, which was assumed by the grantees. The father testified that, after agreeing to purchase the property and before the deed was executed, at the suggestion of his wife he agreed with his son to have the deed made to both father and son with the understanding that the son would quit drinking whisky and pay $15 per month as rent until the obligation to the loan company was paid off. He further testified that, since the execution of the deed, his son had not quit drinking; that he, the father, had paid the $1582.21 borrowed from his friend, the final payment being made in February, 1947, and also all of the monthly instalments amounting to $1165.92 due the loan company, the final payment being made September 28, 1945; and that the son had not paid the $15 per month rent, but only a relatively small part thereof, as many payments were not made, and at other times only a part of the monthly rent was paid. He further testified that he paid all of the insurance, upkeep, and taxes on the place.

The son denied that there was any agreement made concerning his drinking, but testified that the property was purchased by them jointly; that he made all the payments required of him to liquidate all of the indebtedness on the place; and that he paid the $200 original payment with funds given him by his mother. He admitted that his father actually made all payments on the loans, but stated that he had paid to his father his portion of all payments required to retire the loans.

In the son's answer, he had prayed for an accounting. He testified that from portions of the building other than that occupied by his family and his father's family, his father had collected large sums as rent.

The jury found in favor of the father, and to the overruling of an amended motion for new trial exceptions were filed. 1. The issues of fact were questions for the jury, and they having found in favor of the father, the controlling question here presented is whether the evidence in behalf of the father was sufficient to establish a trust in favor of the father to the one-half interest of the son, as appeared from the deed.

The facts here would not create an express trust, as the agreement was not in writing but in parol, and an express trust cannot be engrafted on a deed by parol. Jones v. Jones,196 Ga. 492 (26 S.E.2d 602), and citations. Under the Code, § 108-106 (1), trusts are implied whenever the legal title is in one person, but the beneficial interest, by reason of the payment of the purchase-money, is partially in another. There is evidence here, over and beyond any verbal agreement, that the father paid all of the initial payment of $1582.21, and all subsequent monthly payments to the loan company. Under the conflicting evidence, the jury found that of the total of $2750 paid for the property, including the initial and subsequent payments, the father paid $2475 and the son $275. "A resulting trust which arises solely from the payment of the purchase-price is not created, unless the purchase-money is paid either before or at the time of the purchase. Trusts implied from the payment of the purchase-money or a part thereof must result, if at all, at the time of the execution of the conveyance." Hall v. Edwards,140 Ga. 765, 767 (3) (79 S.E. 852); Berry v. Brunson,166 Ga. 523 (1) (143 S.E. 761). But where a trust is created at the time of the execution of the conveyance, the recovery or decree must be in proportion to the total amount of purchase-money paid by the one seeking to establish the trust.Hemphill v. Hemphill, 176 Ga. 585 (1) 590 (168 S.E. 878). Where an initial payment is made by one at the time of the execution of the conveyance taken in the name of another, this would support the establishment of a trust in the payor, and subsequent payments made by him should be considered to fix the extent of the trust interest. Loggins v. Daves, 201 Ga. 628 (4) (40 S.E.2d 520).

The transaction here being between father and son, a gift would be presumed, but this presumption is rebuttable. Code, § 108-116. Where an implied trust is otherwise established, it is not destroyed by an express verbal agreement which may have constituted a part of the transaction. The express agreement may be shown, not as fixing the interest to be owned by the parties, but as rebutting the inference of a gift. Guffin v. Kelly,191 Ga. 880 (1), 886 (14 S.E.2d 50); Hudson v. Evans,198 Ga. 775 (2) (32 S.E.2d 793).

In view of the foregoing, the evidence was sufficient to establish an implied trust in favor of the father on the interest of the son in proportion to the amount of purchase-money paid thereon by the father.

2. By the fourth ground of amendment exceptions are taken to two paragraphs of the charge. The exception to the first paragraph, relating to the issues to be passed on by the jury, when taken in connection with the whole charge, is without merit.

(a) Neither was there any error in the second paragraph, which explained that their verdict would be made by answering certain questions, which were subsequently propounded and answered. The jury found: "We, the jury, find (1) for the plaintiff (father) that the name of E. W. Estes (son) be stricken from the deed as prayed; (2) that defendant (son) has paid on the purchase-price the sum of $275 from his own funds, and that the plaintiff (father) has paid $2475 from his own funds; (3) that plaintiff paid out on said property $2475 over and above the amounts collected by him from rentals and so forth." The decree provided that the name of the son be stricken from the deed, and that the father pay to the son the sum of $275, to be a lien upon the property until paid. There was no evidence to authorize the reformation of the deed by striking the name of one of the grantees, but such error was not reversible. The father was entitled to an implied trust upon the share of the son in proportion to the amount of purchase-money paid thereon. It is therefore directed that the judgment be amended so as not to strike the son's name from the deed, but to impress an implied trust on the half interest of the son in proportion to the amount paid on this half interest by the father, and also to eliminate the provision that the father pay the son $275.

3. Ground five of the amended motion alleges error in the following charge: "I instruct you that, to engraft a trust upon a deed by parol evidence, the evidence must be clear and satisfactory. While that evidence, the law says, must be clear and satisfactory, still the burden is on the plaintiff only by a legal preponderance of the evidence." The court having charged that "all express trusts shall be created or declared in writing," there was no error in this instruction.

4. Grounds six and seven are controlled by the rulings made in the first and second divisions of this opinion.

5. The requested charge complained of in ground eight of the amended motion was fully covered by the charge of the court.

6. The requested charge contained in ground nine is controlled by the rulings made in division 2 (a) of this opinion.

Judgment affirmed, with the direction given in division 2 (a)of the opinion. All the Justices concur.