Opinion
17633.
SUBMITTED OCTOBER 9, 1951.
DECIDED NOVEMBER 13, 1951. REHEARING DENIED NOVEMBER 28, DECEMBER 14, 1951.
Injunction, etc. Before Judge West. Clarke Superior Court. July 27, 1951.
Edwin Fortson and W. T. Ray, for plaintiff.
Rupert A. Brown, for defendants.
1. Trust estates may be created for the benefit of minors. Code, § 108-114. A claim against a trust estate for services or for articles or money furnished to the trust estate may be enforced in either a court of law or a court of equity. §§ 108-501, 108-506. But in order to subject a trust estate to an obligation, the specific facts which render it liable for the debt claimed must be alleged and established by evidence. Gaudy v. Babbitt, 56 Ga. 640. In the present case, the petitioner alleged that the money loaned by her was used by White for the purchase of the Thomas Street property, included in the deed of trust. This allegation was denied by both defendants, and there was no evidence that any part of the proceeds of such loan went into the purchase of the Thomas street property. Accordingly, the petitioner was not entitled to a special lien against the trust property upon the theory that money advanced by her had been used in the purchase of such property.
2. The amended motion for new trial contains six grounds, each attacking an extract from the charge of the court. The charge fairly and impartially submitted to the jury the issues made by the pleadings and evidence, and, when considered as a whole, was free of error. The jury by their verdict have determined that the petitioner was not entitled to assert a lien having priority over the deed of trust, and this finding by the jury is not without evidence to support it. The court did not err in overruling the motion for new trial as amended.
Judgment affirmed. All the Justices concur.
No. 17633. SUBMITTED OCTOBER 9, 1951 — DECIDED NOVEMBER 13, 1951 — REHEARING DENIED NOVEMBER 28, DECEMBER 14, 1951.
Mrs. Henry T. Aiken filed an action against Robert L. White, individually, and his wife, Mrs. Florence L. White, as trustee. In so far as material, her petition alleged: In October, 1945, the defendant, Robert L. White, sought a loan from the petitioner in the amount of $5000. The defendant represented that the loan was to be used in the purchase and improvement of real estate on Thomas Street in the city of Athens. The defendant was already indebted to the petitioner in the sum of $1000, and relying upon the representations made, she loaned the defendant $5000, and took his note for $6000, due twelve months after date, with a mortgage on certain personal property. The defendant purchased the Thomas Street property and improved it by erecting a brick building thereon. On information and belief, she alleges that the $5000 loan made by her to the defendant was used as a part of the purchase price of the Thomas Street property. In December, 1947, without the knowledge or consent of the petitioner, the defendant executed and delivered to his wife, as trustee for their three minor children, a voluntary conveyance of all real property owned by the defendant, and including the Thomas Street property. In May, 1948, the defendants approached the petitioner with a request that she release her mortgage on the personal property located in the building on the Thomas Street property, and that she take a lien upon real property of the defendants, against which there was certain outstanding indebtedness. The petitioner canceled her mortgage note and took a new note, believing that she had procured a lien against the Thomas Street property. The defendants have failed to pay the note. The entire course of conduct of the defendants has been with the wilful and fraudulent intent to hinder, delay, and defraud the collection of the debt due the petitioner. The trust deed made by Robert L. White to his wife is void as to your petitioner, in that it was a voluntary conveyance which rendered the defendant, Robert L. White, insolvent.
The prayers of the petition were for process; that she have judgment against the defendant, Robert L. White, for principal, interest, and attorney's fees; that the judgment be declared a special lien on all property formerly owned by Robert L. White; and pending the outcome of the suit, that the defendant, Florence L. White, be enjoined from disposing of or encumbering the trust property.
The defendants filed separate answers, in which it was denied that any part of the loan from the petitioner to Robert L. White was used in the purchase of the Thomas Street property, later conveyed in the deed of trust for the benefit of the defendants' minor children.
Upon the trial of the case the jury returned a verdict for principal, interest, and attorney's fees against the defendant, Robert L. White, and found against the claim of a special lien upon the trust property. The petitioner filed a motion for new trial, which was subsequently amended, assigning error on certain charges of the court. Her motion for new trial, as amended, was overruled, and the exception is to that judgment.