Opinion
19097.
ARGUED SEPTEMBER 14, 1955.
DECIDED JANUARY 9, 1956.
Specific performance. Before Judge Thomas. Ware Superior Court. June 11, 1955.
Wilson Wilson, Leon A. Wilson, II, for plaintiff in error.
Ben A. Hodges, Gibson Maddox, Geo. E. Maddox, contra.
The allegations of the petition as amended are sufficient to allege inceptive fraud, as distinguished from the failure to perform some act in the future according to an agreement; and the trial court erred in sustaining the defendant's general demurrer and in dismissing the action.
ARGUED SEPTEMBER 14, 1955 — DECIDED JANUARY 9, 1956.
John L. Bennett, Jr., filed his suit in equity against Julia Maybell Bennett, in which he prayed for specific performance to require the defendant, his mother, to execute a deed to him conveying described property. The trial court sustained a general demurrer to the petition and dismissed the action. The exception here is to that judgment.
The petition alleges in substance that the petitioner is the son of the defendant; that at the time of the execution of the deed in question, she had an encumbrance of $12,000 on her home, on which the plaintiff was "endorsee"; that his mother was almost entirely dependent upon him for support; that he was "involved in marital difficulties with his wife, since divorced," and as a result had received threats against his life; that if said threats were executed, his mother, the defendant, "would be left practically destitute"; that he had an oral agreement with his mother to the effect that he would convey to her the property in question in order to provide her something to live on in case the threats were carried out and he was killed; that it was further "agreed that she would reconvey said property to plaintiff at any time that he might desire, without the payment of any purchase price; that, as a result of the oral agreement, defendant had a deed prepared and plaintiff, without consideration save defendant's promise to reconvey the property to him upon his request, executed and delivered the deed to her; that, but for the promise of the defendant to reconvey the property to him at any time, the plaintiff would never have deeded the property to the defendant.
By an amendment the plaintiff added the following: At the time of the deed in question, the defendant "had no intention of complying with her said promise" to reconvey the property to the plaintiff; that the defendant "intended to defraud" the plaintiff out of the property; and that prior to the oral agreement and at the time the deed was executed the defendant intended to "procure" the plaintiff to execute to her the deed, and at no time did the defendant intend to comply with her promise to reconvey the property to the plaintiff; and that the defendant's promise to reconvey the property to the plaintiff "was a part of a calculated and premeditated plan" to defraud the plaintiff out of his property.
The plaintiff rests his case solely upon the proposition that the facts alleged in his amended petition make a case for the application of the principle of implied trusts, and the defendant relies upon the proposition that the facts alleged constitute an express trust, which, not being in writing, was invalid and unenforceable.
"Trusts are implied . . . where, from any fraud, one person obtains the title to property which rightly belongs to another." Code § 108-106 (2). In Jenkins v. Lane, 154 Ga. 454 ( 115 S.E. 126), it is stated: "A trust is implied where, from any fraud, one person obtains title to property which rightfully belongs to another. An implied trust arises wherever 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; and after having thus fraudulently obtained title, he retains, uses, and claims the property absolutely as his own, so that the whole transaction by means of which the ownership is obtained is in fact a scheme of actual deceit." Such an implied trust is sometimes termed a constructive trust or a trust ex maleficio. The essential ingredient which gives rise to a constructive trust is fraud. And where, as here, the question involves a deed to land, and the legal title to the land is sought to be recovered by the enforcement of an oral agreement to reconvey it, fraud must have existed contemporaneously with the acquisition of the land by the one who is sought to be charged as trustee ex maleficio. Brown v. Doane, 86 Ga. 32, 38 ( 12 S.E. 179, 11 L.R.A. 381). "Equity will declare a constructive trust in respect of property acquired by fraudulent oral promises of a vendee, which he intends at the time of making to violate." Mays v. Perry, 196 Ga. 729, 734 ( 27 S.E.2d 698).
It is alleged that the defendant obtained title to the property here involved on the strength of her promise to reconvey it to the plaintiff if and when he called on her to do so. The plaintiff alleges that, at the time she acquired the property for the purpose orally agreed upon, the defendant intended to claim the property thereafter as her own. The defendant by her general demurrer admits the allegations of the petition.
The allegations in the original petition — to the effect that the plaintiff had an oral agreement with his mother that he would convey to her the property in question in order to provide her something to live on in case the threats were carried out and he was killed, and that it was further "agreed that she would reconvey said property to plaintiff at any time that he might desire, without the payment of any purchase price" — standing alone, would be an attempt to assert an express trust by parol, and engraft it on a deed, which cannot be done. Jones v. Jones, 196 Ga. 492 (1) ( 26 S.E.2d 602); Pantone v. Pantone, 202 Ga. 733 (2) ( 44 S.E.2d 548). But the allegations of the petition as amended are sufficient to allege inceptive fraud, as distinguished from the failure to perform some act in the future according to an agreement. Williford v. Swint, 181 Ga. 44 (1) ( 181 S.E. 227); Pantone v. Pantone, supra; Dixon v. Dixon, 211 Ga. 557 (1) ( 87 S.E.2d 369); Bucher v. Christopher, 211 Ga. 317 ( 85 S.E.2d 760). Accordingly, the trial court erred in sustaining the defendant's general demurrer and in dismissing the action.
Judgment reversed. All the Justices concur, except Wyatt, P. J., and Head, J., who dissent.