Jenkins v. Lane , 154 Ga. 454 ( 1922 )

Hines, J.

(After stating the foregoing facts.)

Did the amendments to the plaintiffs’ petition set out a new and distinct cause of action? The original petition alleged that the father was of unsound mind, and did not have sufficient mental capacity to make the deeds in question to his son, who, with knowledge that his father was of unsound mind, by false and fraudulent representations induced him to execute said deeds. For these reasons the plaintiffs alleged that the deeds were null ’ and void, and prayed that they be declared void, and be delivered up and canceled. By these amendments the plaintiffs undertook to set up and enforce an implied trust in favor of the father, growing out of the facts set up in the petition as amended. The original suit was brought to cancel deeds, because the maker was of unsound mind and the deeds were obtained by the son from the father by fraud and deceit. The amendments struck out the allegations of the petition that the deeds were void because the maker was mentally incapable of making them and because procured by fraud, and the prayers for their cancellation; and the petition, as amended, sought to set up an implied trust arising from the confidential relation existing between the father and the son, and the fraud perpetrated on the former by the latter in procuring these deeds, and added a prayer for the enforcement of this implied trust.

Plaintiffs and defendants, whether at law or in equity, may at any stage of the cause, as a matter of right, amend their pleadings .in all respects, in matters of form or substance, if there is enough in the pleadings to amend by. Code (1910), § 5681. Clearly the right to amend is exceedingly broad. Georgia R. &c. Co. v. Tice, 124 Ga. 459 (52 S. E. 916, 4 Ann. Cas. 200). Cox v. Ga. R. &c. Co., 139 Ga. 532, 533 (77 S. E. 574). Amendment is a resource against waste. Ellison v. Ga. R. Co., 87 Ga. 691, 697 (13 S. E. 809); Atlanta &c. R. Co. v. Ga. Ry. &c. Co., 125 Ga. 798 (54 S. E. 753). The practice as to the allowance of amendments is very liberal. Benning v. Horkan, 123 Ga. 454 (51 S. E. 333); Kemp v. Central Ry. Co., 122 Ga. 559 (50 S. E. 465); Mendel v. Miller, 134 Ga. 610 (68 S. E. 430). If an amendment is germane to the original cause of action, it should be allowed. Patrick v. Cobb, 122 Ga. 80 (49 S. E. 806); Woodward v. Fuller, 148 Ga. 239 (96 S. E. 323). Where an amendment does not set forth a different cause of action from that alleged in the petition, it is the right of the plaintiff, upon election, to amend. Gabbett v. Atlanta, 137 Ga. 180 (73 S. E. 372).

A plaintiff cannot go so far as to set up a new cause of action. When amendments make an entirely new case from that made in the original bill, they are not, on that account, admissible. Rogers v. Atkinson, 14 Ga. 320; Civil Code (1910), § 5683. “A cause of action is some particular legal duty of the defendant to the plaintiff, together with some definite breach of that duty which occasions loss or damage.” Ellison v. Ga. R. Co., supra. What particular legal duty did the plaintiffs assert against the main defendant, and what definite breach of that duty by him did they alleged in their original petition? They declared that this defendant obtained from his very aged father, who was mentally incapable of executing them, by fraud, deeds to his large and valuable landed estate, for a very inadequate consideration, by reason of which said conveyances are void, and, as heirs at law and legatees of the grantor, they prayed to have the same cancelled, and for recovery of their interest in this property. They alleged that, under these circumstances, it was the duty of this defendant to let them into their shares of the inheritance, and that his refusal to do so was a breach of this duty. This was their cause of action. In its last analysis it rested upon two legs, one of which was the mental incapacity of the father to make these deeds, and the other the fraud by which the son obtained the deeds. By their amendment the plaintiffs struck out all allegations touching the mental incapacity of ,the father; and left their case to rest upon fraud. The amendment struck out substance, but still left meat in their case. They likewise struck their prayer for cancellation. This amendment was déstructive, but plaintiffs had the right to make it. If it had gone to the vitals of their case, the defendant could not object to the amendment, but should have taken advantage of it by demurrer or motion to dismiss. Vanderzer v. McMillan, 28 Ga. 339.

But the amendments did not entirely destroy the case of the plaintiffs, but left it in court resting upon the ground that the defendant was holding this property as a vendee by fraud. The plaintiffs, in their several amendments, amplified and varied the details and circumstances of the fraudulent transaction by which the defendant acquired the deeds to the property; and then added an appropriate prayer that the defendant be decreed to be holding the property under an implied trust for the use and benefit of his father or the latter’s heirs at law. This they could do by amendment. Civil Code (1910), § 5682; Ellison v. Ga. R. Co., supra. In Ansley v. Glendemving, 56 Ga. 286, the amendment was not in aid of the original bill, but inconsistent with and destructive of it. Here the amendment was in aid of the original petition, and not destructive of it. In Hart v. Henderson, 66 Ga. 568, a wife alleged in her petition that she had bought property through the agency of her husband, who had been deceived as to its value by the vendor, and that she had paid its full value; and she prayed that the vendor be required to make title to her. This court held that she could not amend her petition by alleging that the husband bought the land for himself with her money, which the vendor knew, and praying for the recovery from the vendor bf her funds so used. Clearly this amendment was not in aid of the original petitiqn, but wholly inconsistent with and destructive of it. In Horton v. Smith, 115 Ga. 66 (41 S. E. 253), this court ruled that a suit to recover damages for breach of a contract could not be converted into an action for rescission of the contract and the cancellation of the deed made thereunder, on the ground of nonperformance by the defendant. Such amendment nullified the first cause of action, and set up an entirely new and distinct one. In Roberts v. Atlanta Real Estate Co., 118 Ga. 502 (45 S. E. 308), a suit was brought against one as the principal and sole wrongdoer, to recover damages for alleged acts of trespass, and. to enjoin the commission of future acts of trespass. An amendment was offered, alleging that both in the commission of the acts of trespass, and in the determination to repeat them in futuro, the defendant was acting as the agent for another and under another’s direction, and praying that the latter be made a party, and enjoined in like manner as the original defendant; and this court held that this amendment should have been stricken at the instance of the party to be added thereby, the latter objecting to its allowance on the ground that it set up a new and distinct cause of action. There is nothing in this decision which militates against our ruling in this matter. So we are of the opinion that the court did not err in allowing the amendments to the petition of the plaintiffs.

We will now consider the judgment of the court overruling the two demurrers of the defendant to the petition as amended. All the grounds of the first demurrer are special. The first three grounds attacked the petition and asked to have the same dismissed on the ground that the plaintiffs were seeking to recover on contradictory theories, and prayed that the plaintiffs be required to elect on which theory they would proceed. The 4th ground of this demurrer was leveled at paragraph 9-% of the petition as amended, on the ground that the same was not sufficiently clear, there being no “unequivocal allegation that John A. Jenkins Sr. made a distinct limitation of the purpose of the deed referred to.” The 5th ground is a special demurrer to this paragraph, on the ground that it does not with sufficient clearness set out what was done and said by John A. Jenkins Sr., the plaintiffs merely asserting their' conclusion as to the meaning of what was said and done. The court sustained this demurrer unless the plaintiffs elected to proceed upon one or the other of the bases of recovery referred to therein and to strike from their petition all allegations in support of the abandoned ground of recovery. This the plaintiffs did; and thereupon the court overruled this demurrer. Defendant having gotten the relief asked on the three special grounds of this demurrer, there is now no merit in the contention that the court erred in overruling the demurrer so far as these grounds are concerned. We do not think the special grounds of demurrer aimed at paragraph 9-1/2 of the petition are well taken. Eagan v. Conway, 115 Ga. 130 (7) (41 S. E. 493). So the court did not err in overruling this demurrer after the plaintiffs elected to prosecute their action upon the ground that the defendant held the property in controversy under an implied trust, and struck from their' petition all’ allegations that the deeds were void on the ground that the maker was mentally incapable of executing them, and the prayer for their cancellation on this ground.

By his second demurrer the defendant demurred specially to the petition as amended, on the ground “that the same is multifarious and duplicitous, for that the same embodies and embraces two inconsistent and irreconcilable causes of action.” The petition as amended does not set up inconsistent and irreconcilable causes of action. For this reason the trial judge did not err in overruling this special demurrer.

This brings us to consider the vital and important question involved in this litigation; and that is, whether an implied trust can be set up by parol evidence in behalf of the grantor when he conveys property by warranty deeds purporting to be absolute conveyances, when possession is delivered to the grantee. It is strongly urged by'counsel for defendant, who is the grantee in the deeds, that the effort of the plaintiffs is to attach by parol an express trust or condition to these deeds, and that the evidence, resting entirely upon parol, introduced by the plaintiffs is intended to accomplish this end alone. It may be said that.it appears from the proof that the grantor remained in possession of the large plantation involved in this litigation' after he conveyed the same to the grantee; but it is alleged in the petition that the grantor delivered possession of the property embraced in these deeds to the grantee. Taking the allegations of the petition most strongly against the pleaders, we shall treat the question involved upon the theory that the grantee took actual possession of the lands embraced in the deeds, to the exclusion" of the grantor.

Can an implied trust be set up by parol evidence against the grantee in deeds which purport to be absolute ones of bargain and sale with warranties of title, when the grantee is put in possession of the property under such conveyances? The contention is that to permit this to be done would violate the well-established rules, that “ Parol evidence is inadmissible to add to, take from, or vary a written contract” (Civil Code (1910), § 4268, par. 1); that “in all cases where the parties have reduced their contract, agreement, or stipulation to writing, and assented thereto, it is the best evidence of the same” (§ 5752); and that “ A deed ox bill of sale, absolute on its face and accompanied with possession of the property, shall not be proved (at the instance of the parties) by parol evidence to be a mortgage only, unless fraud in its procurement is the issue to be tried ” (§ 3258). We shall undertake to show that the first two of the above-stated rules do not exclude parol evidence when the purpose is to establish an implied trust. Manifestly the third rule has •no application to the case at bar, in which no effort is made to reduce absolute conveyances to mere mortgages. The Civil Code, § 3741, declares that “ in all cases where a trust is sought to be implied, the court may hear parol evidence of the nature of the transaction or the circumstances or conduct of the parties, either to imply or rebut a trust.” This is the rule applicable to the use of parol evidence to establish an implied trust, and fits the case at bar like a glove.

It is true an express trust cannot be proved by parol. It “must be created or declared in writing.” Civil Code (1910), § 3733. This section was taken from the statute of frauds (29 Car. II, c. 3; Cobb’s Digest, 1127, § 7). In the early history of this court it was held “that parol trusts of real estate may be established in direct contradiction to the statute, on the ground of fraud. And, that whenever a case of fraud is made by the bill, parol evidence will be received for the purpose of sustaining that case, even though the effect of such evidence be to alter or vary a written instrument, and although the benefit of the statute be insisted upon by the defendant.” Miller v. Cotten, 5 Ga. 341, 346. Judge Nisbet well said: “I do not deny that parol trusts of lands may be enforced in equity upon the ground of fraud. Fraud, in such a case, is a sufficient reply to the statute. The statute, intended to prevent frauds as well as perjuries, cannot be made a cover for frauds.” Robson v. Harwell, 6 Ga. 589; Cameron v. Ward, 8 Ga. 245. In Adams v. Jones, 39 Ga. 479, a case in many respects similar to the one at bar, this court held: “When a bill was filed, alleging fraud in the conveyance of land and other property, praying for an account and decree against the defendant: Held, 1. That the allegations in complainants’ bill made a case of fraud, on the trial of which parol evidence was. admissible to prove the fraud, and thereby raise an implied trust in favor of Jones and his family.” “There is no law which requires a fraudulent undertaking to be manifested by writing. Those who use promises, which they make deceitfully, for the purpose of accomplishing fraudulent designs, are generally careful not to furnish written evidence of their turpitude. Such promises, whatever may be their terms, do not, unless reduced to writing, raise express trusts; but the law, acting upon them according to their nature, makes them a basis upon which to build up in favor of the defrauded party an implied or constructive trust.” For proof of such implied trusts, resort may be had to parol evidence. Brown v. Doane, 86 Ga. 32, 38 (12 S. E. 179, 11 L. R. A. 381). While an express trust can only be shown by a writing, an implied trust may rest upon an express parol agreement, fraudulently made, by which a person acquires title to property of another; and in such case the express promise or agreement may be proved by parol to raise, not an express, but an implied trust.

Have the plaintiffs alleged and proved an implied or constructive trust? This depends upon what an implied trust is. Trusts are either express or implied. Civil Code (1910), § 3731. Express trusts are those created and manifested by a written agreement of the parties. Implied trusts are such as are inferred by law from the nature of the transaction or the conduct of the parties. § 3732. “ Trusts are implied — 1. Whenever 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 . 2. Where, from any fraud, one person obtains the title to property which rightfully belongs to another. 3. Where, from the nature of the transaction, it is manifest that it was the intention of the parties that the person taking the legal title shall have no beneficial interest.” § 3739. The second paragraph of this section expressly recognizes trusts which arise ex maleficio. Such a trust “ occurs whenever a person acquires the legal title to land or other property by means of an intentionally false and fraudulent verbal promise to hold the same for a certain specified purpose, — as, for example, a promise to convey the land to a designated individual, or to reconvey it to the grantor, and the like, — and having thus fraudulently obtained the title, he retains, uses, and. claims the property as absolutely his own, so that the whole transaction by means of which the ownership is obtained is in fact a scheme of actual deceit. Equity regards such a person as holding the property charged with a constructive trust, and will compel him to fulfill the trust by convejdng according to his engagement.” 3 Pom. Eq. Jr. (4th ed.) § 1055; Brown v. Doane, supra. “In such cases, a court of equity would take hold of the conscience of the defendants, and hold them as trustees, for the benefit of the party defrauded.” Cameron v. Ward, 8 Ga. 245.

If the son procured from his father (who was over eighty years of age, feeble in body and mind, largely in debt, wdio was being pressed by his creditors for payment of their claims, who could not borrow money in his own name on his lands to discharge these pressing obligations, due to disinclination of lenders to make loans to very aged people who might at any time die and delay them in the collection of the interest and principal of their loans, and who was suffering mental torture due to his inability to pay his debts as he once had done) deeds to practically all his property of great value, upon the promise of his son to take his property so conveyed, borrow money thereon, and discharge his debts, and that the son would make no claim to the title thereto as against his father or his heirs at law, the son at the time intending to thus secure .the title in himself for the purpose of setting up a claim to such property as his own, it would be inequitable and iniquitous to permit the son to carry out such a fraudulent scheme and to hold such property as his own against his father or the heirs of the latter. Under such circumstances, a court of equity will impress on such property an implied trust in favor of the father, and will declare the son to be the trustee holding the property for the use and benefit of the father, his heirs at law or legatees.

We come next to consider the grounds of the motion for new trial. The above rulings dispose of the 1st, 7th 9th, 10th, 11th, 12th, 13th, and 14th grounds of the amended motion for new trial, which complain of the admission of evidence tending to establish the implied trust set up by the plaintiffs, over objection of defendant that such testimony was irrelevant and tended to engraft upon his deeds an express condition or trust.

The court did not err in admitting the testimony set out in the second ground of the amended motion, that “the mind of John A. Jenkins Sr. was not good on Sept. 8, 1915,” on the ground that the same was immaterial to any issue made by the pleadings. This evidence was competent on the issue of whether any fraud was perpetrated by the son upon the father.

The court did not err in admitting the testimony set out in the third ground of the amended motion, on the ground that it was a mere statement or conclusion with nothing on which to base it. The witness had testified that the deceased was ill in 1912 or 1913, and was in very feeble condition physically all the balance of his life. The matter about which the witness testified was one of opinion, and the facts on which he based his opinion were given.

The testimony set out in the fourth ground of the amended motion was properly admitted for the purpose of showing that the plaintiffs, had made a demand upon the executors to bring suit to recover this property from the son, and that the executor referred to had declined to do so because, he said, his hands were tied.

The court did not err in ruling out the testimony set out in the fifth ground, to the effect that John A. Jenkins Sr. was a sane man, the same being- a mere opinion of the witness without the facts upon which he based his opinion.

We think the court erred in admitting the evidence set out in the sixth and eighth grounds of the amended motion. This testimony consists of statements made by Mrs. Alice Calhoun, one of the defendants in the case, and was admitted by the court on the ground that she was a party defendant whose pertinent statements were admissible to bind herself. This party was only a nominal defendant; the real fight was between the plaintiffs and John Alfonso Jenkins Jr. The sole purpose of this evidence would be to affect the credit of this witness. The admissions of a nominal party to the record are not admissible. Civil Code (1910), § 5776. No foundation for impeachment was laid. Under these circumstances, the objection of the defendant that this evidence was hearsay was well taken, and this evidence should not have been admitted. However, we do not think that the illegal admission of this evidence should work the grant of a new trial, where the judge below, in the exercise of his discretion, refused to grant a new trial on this ground. Civil.Code (1910), § 6083.

Grounds of the amended motion from 15 to 20, inclusive, deal with errors alleged to have been committed by the court in his charge to the -jury. The error alleged in the instruction set out in the 15th, 19th, and 20th grounds is that they confined the defense of the defendant to the question of whether the deeds under which he claimed were absolute conveyances, and excluded the defense that the trust sought to be set up was an express trust. We do not think that the court committed error in giving these instructions. The real issue in the case was whether the deeds were absolute conveyances, or were made under such circumstances as to impress thereon an implied trust in behalf of the grantor.

Error is alleged on the instruction set out in the 16th ground, because there was no evidence upon which to base that portion relating to constructive fraúd. This exception is not well taken. Both species of fraud are involved in this case. The error assigned upon the instruction set out in the 17th and 18th grounds of the motion is to the effect that the court unduly emphasized certain features of the evidence and certain facts sought to be established by the plaintiffs. This exception does not seem to be well taken. The court did not unduly emphasize the potent facts referred to. .

We find no error in the judgment of the court overruling the motion for new trial which requires its reversal.

Judgment affirmed.

All the Justices concur.