Allen v. Allen
| Citation | 27 S.E.2d 679,196 Ga. 736 |
| Decision Date | 07 October 1943 |
| Docket Number | 14623. |
| Parties | ALLEN v. ALLEN et al. |
| Court | Georgia Supreme Court |
Rehearing Denied Nov. 12, 1943.
Syllabus by the Court.
1. Under the rulings in the cases of Teasley v Bradley, 110 Ga. 497, 35 S.E. 782, 78 Am.St.Rep. 113 and Rucker v. Maddox, 114 Ga. 899, 41 S.E. 68, the petition stated a cause of action.
2. Where a wife places funds in the hands of her husband, under his agreement to receive, invest, and reinvest the same from time to time for her benefit, and to hold the proceeds and the profits thereof subject to her demand, the statute of limitations does not begin to run against the wife to call for an accounting until there has been an account rendered accompanied by an offer to settle, a refusal upon demand to settle, a notice of adverse claim, an express repudiation of the fiduciary relation, such a change of circumstances of the parties as would be reasonably calculated to put the wife on notice that the relation is no longer recognized, or something to indicate to a reasonably prudent person that the relation has ceased, in which case the law would presume a demand after the lapse of a reasonable time.
(a) Where in such circumstances a husband after having been in possession of his wife's funds for fifteen or more years, abandoned her with the statement 'that he was through with' her, and left her to reside alone, such abandonment accompanied with the statement aforesaid was not such a change of circumstances of the parties as would reasonably be calculated to put the wife on notice that the husband no longer recognized the fiduciary relation as to her property held and controlled by him, nor was it sufficient to indicate to a reasonably prudent person that such relation had ceased.
(b) The fact that the husband was through with his wife and left her to live alone did not necessarily result in a change of, nor was it inconsistent with, the fiduciary relation with respect to the wife's separate estate managed and controlled by the husband.
(c) Nor was such abandonment under the aforesaid circumstances sufficient to put the wife on notice that the husband was holding her property adversely, as contemplated by the terms of the Code, § 85-1706, wherein it is provided that one obtains prescriptive title to personal property when held adversely for four years.
3. Where a husband receives funds from his wife upon his agreement to receive the money, to invest and reinvest the same from time to time for her benefit, and to hold the proceeds and profits thereof subject to the wife's demand, the mere fact that the delivery of the funds is accompanied by the agreement does not operate to create an express, and therefore unenforceable, trust in respect to said funds. But such express verbal agreement may be pleaded and proved to rebut the inference of a gift by the wife to the husband.
4. In an equitable proceeding to trace funds and to impress a trust thereon, where only a single set of facts is alleged, an alternative prayer for the original sum in controversy, plus interest, in the event of failure to trace said funds, is permissible; and the inclusion of such a prayer does not render the petition multifarious as being an action for money had and received, accounting between principal and agent, and the establishment of an implied trust.
5. Where in a petition it is sought to impress a trust upon shares of capital stock of a corporation alleged to be held in the name of one of the defendants, and also upon certain described choses in action held by said defendant against the corporation, and where injunctive relief is requested against changing the status of such stock and choses in action pending the litigation, the corporation is a proper party defendant, and the naming of such corporation as a party defendant to the case does not result in a misjoinder of parties or causes of action.
6, 7. For the reasons pointed out in the opinion, infra, it was not error to overrule the special demurrer to the petition.
On November 29, 1941, Mrs. E. W. Allen filed her petition against E. W. Allen, her husband, and Peoples Loan, Inc., a corporation engaged in a loan and savings business. She was married to Allen on February 12, 1899, was sixty-five years of age at the time of the filing of the suit, and was living separate and apart from her husband. During coverture she came into ownership, as a part of her separate estate, of $4,840.86 in cash, and of two parcels of real estate which were sold on June 11, 1920. She received for each parcel $2,500, payable $250 cash and $25 per month thereafter, and the final payments on both tracts were due to have been made before the filing of the petition. The sale and the collection of the notes was handled by defendant Allen as the agent of petitioner, who was unfamiliar with the details of the transaction, she never received any of the purchase money, and only signed the bonds for title in connection with the sales. On August 16, 1919, she placed in the hands of her husband $4,840.86 in cash, and on or about June 11, 1920, she placed in his hands the two respective sums of $2,500, bond for title collections, the latter being the entire proceeds of the sales above described, with the understanding at the time of the said deliveries that the husband was to use the funds for the benefit of petitioner, and 'she did so upon his agreement to receive the money to invest same and reinvest same from time to time for the benefit of your petitioner,' and 'defendant did not agree to return said money or investments thereof to petitioner at any time specified, but agreed to hold same or the proceeds and profits thereof subject' to her demand. On November 28, 1941, she made a written demand upon defendant for the return of her original moneys, or the proceeds and profits therefrom, and for an accounting. A copy of the demand was attached to the petition as an exhibit, and in it a brief statement of petitioner's contentions with respect to the transactions were outlined in somewhat the same manner as herein outlined. This demand for a settlement was refused by the husband. On April 15, 1919, Allen with others had incorporated Peoples Savings & Loan Company, now Peoples Loan, Inc., with a capitalization of $100,000, and an actual issue capitalization of at least $10,000. It was alleged in [196 Ga. 739] paragraph 15 of the petition, 'That petitioner charges upon information and belief that defendant E. W. Allen, as said confidential continuing agent of petitioner, purchased in petitioner's behalf capital stock of defendant Peoples Loan Incorporated, with said $9,840.86 above described, at exact times unknown to your petitioner, but charged by your petitioner to be as follows: $4,840.86 worth of said stock on or about August 16th, 1919; $5,000 worth of said stock as collections were made by defendant E. W. Allen from proceeds of sale of said real estate.'
Paragraph 16: 'Petitioner had no actual knowledge of said purchase of said capital stock at said time, but charges and believes that said capital stock was purchased in the name of E. W Allen, and represented at least 393 shares of the common capital stock of Peoples Loan Incorporated, then called Peoples Loan & Savings Company.' Allen was alleged to be an implied trustee for petitioner of all of said stock, or any other property purchased with her money at such time when he was her confidential continuing agent, and in equity she is the owner of said stock and all profits or dividends therefrom; that he has in his name or purports to own 482 shares of preferred stock and 542 shares of common stock of Peoples Loan, Inc., of a present fair market value of at least $55,000. From year to year since the purchase of this stock it has paid dividends or percentages in amounts unknown to petitioner, which she never received, but were received by Allen, who either purchased additional stock with same or loaned them to Peoples Loan, Inc. It was charged, that Peoples Loan, Inc., now owes to defendant Allen $30,000 with interest at six per cent., evidenced by a promissory note, which includes in part the proceeds, dividends, or profits due to petitioner from her original investment in capital stock, but she does not know and is unable to trace the exact amount due to her, without the aid of the books and records of the defendants; that the promissory note has a market cash value of $30,000, and Peoples Loan, Inc., is solvent and can pay the loan to Allen; that Allen holds in trust for petitioner, by virtue of the facts stated, at least one half undivided interest in all the capital stock standing in the name of E. W. Allen on the books of said corporation, or owned by him either at law or in equity, and also at least one half undivided interest in the promissory note. Request was made that the court impress upon said property a trust in petitioner's behalf, first upon the undivided interest, and thereafter upon said interests after division or partition in kind as her interest finally appears. Paragraph 23. ...
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