Opinion
15980.
OCTOBER 17, 1947.
Equitable petition. Before Judge Guess. DeKalb Superior Court. July 24, 1947.
H. O. Hubert Jr., and John E. Verner, for plaintiff in error.
Carl T. Hudgins and Quillian Vandiver, contra.
1. Where the uncontradicted evidence paper title to the lots in dispute in the plaintiffs, the burden was on the defendant to prove the averments of her answer, in the nature of a cross-petition, that her husband paid for the lots, and caused the title thereto to be taken in the name of one of the plaintiffs' predecessors in title; and where the defendant offered evidence to show that her husband, who was not a party to the suit, made statements while in possession that he was the owner of the said lots, and that he also, for the purpose of preventing the defendant from collecting alimony from him under a judgment previously rendered, wrote letters tending to show that he was attempting to conspire with named persons to conceal the fact of such alleged ownership, the above evidence being insufficient to prove title in the defendant's husband, the error, if any, in excluding such evidence was harmless.
2. The court having properly charged that express trusts are those created and manifested by agreement of the parties, while implied trusts are such as are inferred by law from the nature of the transaction or the conduct of the parties, and thereafter charging that all express trusts shall be created or declared in writing, and there being no evidence whatever as to any trust having been created in writing, the charge of the court left for the consideration of the jury only the inquiry whether or not, as contended by the defendant, an implied trust was shown by the evidence, and was not reversible error for any reason assigned.
3. The evidence was sufficient to support the verdict for the plaintiffs.
No. 15980. OCTOBER 17, 1947.
Rube Thompson and Annie Ree Thompson filed in DeKalb Superior Court, against Effie Bradley, a petition seeking to recover a described tract of land known as lots 1 and 2, located at the southwest corner of Broker Street and Johnson Drive in Washington Park Subdivision, alleged to be in the possession of the defendant. The petitioners and the defendant claim title under a common grantor, to wit, Patrick H. Jones. Attached to the petition was an abstract of title showing: (a) on October 22, 1941, Patrick H. Jones conveyed the lots in question by warranty deed to Earnest Bradley; (b) on March 20, 1944, Earnest Bradley conveyed the lots to J. C. Pool to secure two notes of $550 each; (c) on May 27, 1944, Earnest Bradley conveyed the lots by warranty deed to J. C. Pool; (d) on August 3, 1944, J. C. Pool conveyed the lots by warranty deed to the petitioners. None of the above deeds was recorded until after the suit was filed.
The defendant filed an answer in the nature of a cross-petition, which as amended contained the following averments: The defendant's husband, Alonzo Bradley, purchased the property from Patrick H. Jones, paid for the same, and erected a home thereon, and he and the defendant lived together in the home until their separation on March 15, 1943. Alonzo Bradley caused the deed to the lots to be made in the name of his son, Earnest Bradley, but the latter did not pay any part of the purchase-price, did not claim to be the owner, and at all times held the legal title for the use and benefit of Alonzo Bradley. It was at all times "understood and agreed between the said Alonzo Bradley and Earnest Bradley that Earnest Bradley would convey the legal title to said Alonzo Bradley whenever he should so desire." Subsequently the defendant obtained a divorce from Alonzo Bradley, and lots 1 and 2, together with lots 3, 4, and 5, of the same subdivision, were awarded to the defendant as permanent alimony. About the date the defendant's alimony suit was filed, the petitioners, Alonzo Bradley, Earnest Bradley, and J. C. Pool, knowing that Alonzo Bradley was the true owner of lots 1 and 2, entered into a conspiracy the purpose of which was to defeat any claim the defendant might have to any of the property of Alonzo Bradley, and the legal title to lots 1 and 2 was conveyed to the petitioners for the sole purpose of defeating the defendant's claim to the property. The petitioners knew of the pendency of the alimony suit at the time the property was conveyed to them, and knew that the defendant was living on the property. The defendant prayed: (a) that the petitioners be enjoined from interfering with her possession of lots 1 and 2; (b) that the title of Earnest Bradley be decreed to be that of a trustee holding for the benefit of L. Z. (Alonzo) Bradley; (c) that title to lots 1 and 2 be decreed to be in the defendant by virtue of the alimony decree; (d) that the defendant be granted general equitable relief.
Patrick H. Jones, the common grantor, testified in part: He dealt with Earnest Bradley in making the sale originally. Earnest Bradley paid him the money under the contract. He never knew or heard of any suggestion that anyone other than Earnest Bradley was to own the land. He did not know where the money came from that was paid to him on the purchase-price of the lot. Alonzo Bradley was present on some of the occasions when money was paid, but Earnest always paid the money.
Earnest Bradley testified for the plaintiffs: He bought the property. Alonzo Bradley was his father. His father did not put any money into the purchase of the property. After the witness bought the property, he built on it. He later borrowed $550 twice from J. C. Pool, a business man in Winder. When the witness dealt with Pool, there was nothing said about the defendant suing for alimony, and the witness did not know of the alimony suit. The witness built the house after he bought the lots. His father, Alonzo, did a lot of work on the house, and the witness paid him for what work he did. The witness did not live in the house. His father lived in the house. The defendant came there three months later.
W. H. Webb testified for the plaintiff: He did some carpenter work for Earnest Bradley on the house. He started framing it. Earnest Bradley employed him to do the work and Earnest Bradley paid him.
J. C. Pool testified for the plaintiffs: Earnest Bradley wanted to borrow some money on the property in dispute. Earnest said it was his property. He brought the notes down there, and Alonzo endorsed the notes and Earnest gave the witness the notes and loan deed for $1100. The witness did not have any transaction with any person other than Earnest. At that time the witness thought that Alonzo and the defendant were living together. The first that the witness knew about the alimony suit was when the defendant had a peace warrant sworn out for Rube. Later on Earnest Bradley executed a warranty deed to take up his notes. About August, 1944, the witness made a deed to Rube Thompson and Annie Ree Thompson, the plaintiffs. Rube is the son-in-law and Annie Ree is the daughter of the defendant and Alonzo. Rube gave the witness a check for $700, and paid $100 in cash, and gave him a note for $550. Rube brought the money himself and paid for it. Alonzo did not send the witness any money. The witness did not know who furnished Rube with the money. He just knew Rube gave him a check for $700 and he gave him a note. At the time the witness sold the property to the plaintiffs, he did not know anything about the defendant making any claim against the property.
Rube Thompson, one of the plaintiffs, testified: He paid his money for the property. He sold a place at Lawrenceville for $700, and in addition gave Mr. Pool $100. He paid Mr. Pool $800 down and gave a note for the balance. He has paid off the note. When he bought the property, he did not have any knowledge that his father-in-law, Alonzo Bradley, had ever had any interest in it. When the witness bought, he did not know that Alonzo's wife was suing him for alimony. Alonzo and the defendant were living in the house when the witness bought it. After about a month Alonzo moved out.
Effie Bradley, the defendant, testified: Alonzo Bradley bought the material that went into the house, and he took some of her money to help buy it. Alonzo was building it, and he hired Mr. Webb to frame the house for him. The witness filed an alimony suit against Alonzo. J. C. Pool told the witness that he came by to let her know he was going to take up some notes on the property from Earnest Bradley, and the witness told him that the house did not belong to Earnest — it was "our house." Alonzo was just doing that to try to get her out of the house. The witness told Pool that she had filed an alimony suit to try to claim the house for herself. The witness stated that she had heard Earnest Bradley make the statement that his father owned the house. Alonzo owned five pieces of real estate.
Documentary evidence was introduced, consisting in part of: (a) The deeds that were set forth in the plaintiffs' abstract of title, which showed a paper title in them. (b) The pleadings in the prior divorce suit filed by Effie Bradley against Alonzo Bradley, which pleadings contained an amendment dated December 7, 1944, showing that the plaintiff in that suit sought to recover lots 1 and 2, in block A of the Washington Park Subdivision and lots 3, 4, and 5, in block B, same subdivision, as permanent alimony. (c) The verdict of the jury in the divorce suit dated December 7, 1944, which awarded Effie Bradley "whatever equity the defendant [Alonzo Bradley] now has in the property described in the petition."
It was agreed among counsel for both sides in the present case that no lis pendens notice was filed by the plaintiff in the divorce action.
The jury returned a verdict in favor of the plaintiffs. The defendant's motion for a new trial as amended was overruled, and the case comes to this court for review upon the defendant's exceptions to that judgment.
1. Special grounds 2 to 6 of the amended motion for new trial complain of the refusal of the court to allow certain witnesses for the defendant to testify as to conversations between the witnesses and Alonzo Bradley with reference to who owned the house in question. All of the witnesses stated that they had had such conversations, and it is insisted that, if the witnesses had been permitted to answer, they would have testified that Alonzo Bradley, while living in the house and in possession of the same, told them that he owned the house and that Earnest Bradley did not own it.
Special grounds 7 to 10 complain of the refusal of the court to admit in evidence material excerpts from certain letters written by Alonzo Bradley to Hamp Bradley and Annie Ree Thompson after he moved away from the property. The first letter was written while the prior divorce action was pending, and the other three letters were written shortly after the verdict for alimony was rendered. The defendant insisted that the excerpts from the letters were admissible because they tended to prove a conspiracy by Alonzo Bradley, Earnest Bradley, J. C. Pool, and the plaintiffs, and tended to prove title in Alonzo Bradley.
While the defendant's answer, in the nature of a cross-petition, averred that her husband, Alonzo Bradley, paid for the land and caused the title to be put in the name of his son, Earnest Bradley, thus constituting her husband the true owner, and that whatever equity her husband had in the land had been awarded to her as permanent alimony in a prior action for divorce, her evidence here failed to support the averments and showed only that the defendant's husband bought the material that went into the house, and that he took some of the defendant's money to help buy it.
The uncontradicted evidence of the plaintiffs showing that paper title was in the name of the son, and that the son bought and paid for the land, the burden was on the defendant to show that her husband paid for the land and caused title thereto to be taken in the name of his son. Conceding that the defendant's husband, who was not a party to the present suit, made statements, while living on the land, that he was the owner thereof, and that after moving away he wrote letters tending to show that he was endeavoring, for the purpose of preventing the defendant from collecting alimony from him under a judgment previously rendered, to conceal the fact that he was the owner of the land in question, and that such conduct tended to prove a conspiracy, as claimed by the defendant, this evidence would not be sufficient to prove title in the defendant's husband. Accordingly, the error of the trial court, if any, in excluding such evidence was harmless, and a judgment will not be reversed for harmless error. Holcombe v. Jones, 197 Ga. 825, 830 (3) ( 30 S.E.2d 903).
2. Special ground 1 complains of the charge: "Trusts are either express or implied. Express trusts are those created and manifested by 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. . . All express trusts shall be created or declared in writing." The criticism is that the statement in reference to express trusts (a) was confusing and misleading to the jury; and (b) was not adjusted to the evidence, in that there was no contention on the part of the defendant that any express trust existed.
In the absence of any issue as to the existence of an express trust, it could not reasonably be said that the charge that all express trusts shall be created or declared in writing was confusing to the jury; and the error, if any, in giving the charge was harmless to the defendant. The court having properly charged the provisions of the Code, § 108-104, that express trusts are those created and manifested by agreement of the parties, while implied trusts are such as are inferred by law from the nature of the transaction or the conduct of the parties, and thereafter charging the provisions of the Code, § 108-105, that all express trusts shall be created or declared in writing, and there being no evidence whatever as to any trust having been created in writing, the charge of the court left for the consideration of the jury only the inquiry whether or not, as contended by the defendant, an implied trust was shown by the evidence. Furthermore, the jury could not have been misled since, immediately following the instruction complained of, the court charged the provisions of the Code, § 108-106 (1 and 3), that "trusts are implied 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, and also 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 should have no beneficial interest;" and there being no evidence whatever as to an express trust, the effect of the charge was again to confine the inquiry of the jury to the sole issue of whether or not an implied trust was shown by the evidence. See Floyd v. Boss, 174 Ga. 544 (5) ( 163 S.E. 606).
3. The evidence was sufficient to support the verdict in favor of the plaintiffs, and the trial court did not err in overruling the defendant's motion for new trial as amended.
Judgment affirmed. All the Justices concur, except Wyatt, J., who took no part in the consideration or decision of this case.