Bentley v. Young , 147 Ga. 373 ( 1917 )

Beck, P. J.

(After stating the facts.)

1. Upon the trial of the ease the evidence of the plaintiff- tended to sustain the allegations that the plant for the manufacture of furniture was to be purchased, that title was to be taken in the name of Young, and that the plaintiff was to have a half interest in the property, which was to be conveyed to him subsequently to the purchase by Young. The evidence tending to show that there was an understanding that the plaintiff was to have the alleged interest in the property was all in parol, which fact did not appear from the petition. The testimony of the plaintiff himself in the record is quite lengthy and in parts confused; but considering it altogether, together with the allegations in his petition, it is clear that he is seeking by parol to engraft an express trust upon the conveyance of the property involved in the controversy to M. B. Young. This can not be done. All express trusts must be created or declared in writing. Civil Code, § 3733. There is no allegation that the conveyance to M. B. Young was in fraud of the plaintiff, for it was understood that the title was to be put in M. B. Young, and -it is distinctly, alleged, that the title so taken in the name of M. B. Young should be held by.him for the use of himself and petitioner. And it is further declared in an amendment to the petition, that “the title to said property . .■ was put into said M. B. Young under the trusts and usages as charged in. the original petition.” These allegations ■ show an express trust, as the trust here alleged was one “created and manifested by agreement of the parties.”- There was no implied trust arising from the payment , for1 the property with the funds of the plaintiff and the consequent taking of the title in M. B,- Young, but the property was paid for with Young’s money and the deed taken in his name, as the parties agreed that it should be done. An express trust can not be engrafted on the conveyance, of the property hy parol. Jones v. Jones, 138 Ga. 730 (75 S. E. 1129); Malone v. Malone, 137. Ga. 429 (73 S. E. 660). Speaking of the statute requiring trusts to be in writing, it has. been said by this court that “the statute is imperative. . . Equity.will only interfere when the setting up, of the statute would be to protect a fraud or prevent relief against an accident.” Printup V. Barrett, 46 Ga. 407.

2. If the evidence upon the rejection of which error is assigned had been admitted, the status of the case would not have been changed. - ,.

3. The court-properly refused to allow , the amendment to the petition, offered pending the trial, upon .which ruling error is assigned. A large part of the amendment was a restatement in substance, though .varied in form, of the contentions made in the pleadings as they stood; and in so far as this amendment alleged a completed contract made .between the vendor of the property and the plaintiff and an understanding that “so soon as he [the defendant] -will have completed the purchase and made the final payment upon the property, that he [the defendant] would cause 'proper papers to be drawn showing-the joint interest of your peti- : tioner with him,, the said -M. B. Young, in said plant, to wit, that of an equal owner in said plant .and all of its property rights,”, it sets up a new cause of action; for we construe it as meaning that the sale and purchase of the property had been agreed upon by him and the- vendor, and that the papers then executed between the vendor and Young merely show upon what terms, as to payment, etc., the property was sold, and that upon- final payment writings would be executed which should vest the title, when it passed from the vendor, in both Young and petitioner. But if the language of that part of the amendment now under consideration, which is vague and indefinite, meant that the title to the- property was taken in the name of M. B. Young in accordance with'*the understanding of all the parties, and that there was an oral understanding that subsequently Young,should execute papers, showing that plaintiff had a half interest in the property, then the amendment should have been stricken upon the ground that it sought to engraft an express trust upon the conveyance to Young. ,.

Judgment affirmed.

All-the Justices concur,- except Fish, Q. J., absent.