Allen v. Allen
| Decision Date | 11 September 1944 |
| Docket Number | 14943. |
| Citation | 31 S.E.2d 483,198 Ga. 269 |
| Parties | ALLEN v. ALLEN. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A judge of the superior court, in the exercise of his discretion, may vacate an order previously passed during the same term consolidating two separate cases pending therein.
(a) No abuse of discretion in so doing appears in the instant case.
(b) The order of consolidation, which was entered on motion of the plaintiff, and affects two cases, one numbered on the trial court calendar as 136,606, and the other as 136,607, and which contains a recital that 'said consolidated cases shall proceed under No. 136,606,' did not amount to a voluntary dismissal by the plaintiff of case No. 136,607 said motion to consolidate not asking that the two cases proceed under the one or the other.
2. The instant suit being one by a wife against her husband to compel him as trustee to account to her for certain monies belonging to her as a part of her separate estate, among them being a sum of money received by her from an insurance policy on the life of her father, she being the beneficiary named therein, it was not error for the court to refuse to submit to the jury a question as to whether the defendant had paid certain insurance premiums on said policy, where the record shows neither an averment nor evidence that the husband paid the same under any contractual agreement with the wife.
3. Whenever a husband, with or without the wife's consent acquires from her money which is the separate property of his wife, he must be deemed to hold it in trust for her benefit in the absence of any evidence that she intended to make a gift of it to him.
(a) The transaction does not make the husband a naked depositary although when the wife delivered such money to him there was no agreement or understanding that it would be invested and reinvested by him for her benefit.
(b) Nor did the absence of any such agreement or understanding merely make the husband liable to the wife as for money had and received, so as to cause no interest to accrue until a demand by her for payment and a refusal by him.
4. When a husband, under circumstances where the law would imply that he received money in trust for her, acquires from the wife such money, belonging to her separate estate, and when called on to account fails to do so, and it appears that immediately upon receiving the said money, he converted it to his own use, mingling the same with his own funds, he is also liable to her for interest from the date of such conversion.
5. In an equity case, where the jury is instructed to render a special verdict consisting of answers to certain questions submitted to them, the judge should submit only such issues as will enable him to render a decree from the verdict, the pleadings, the admissions of the parties, and the undisputed facts.
(a) The general rule, that a decree must follow the verdict on which it is founded, does not require that no decree be rendered unless the verdict contains all the facts upon which it is founded.
(b) If, in an equity suit, the jury's special finding includes one to the effect that the plaintiff is entitled to recover from the defendant a named sum, and their finding is silent as to interest, it is the duty of the judge in framing a decree to award interest from such date as the law would fix, in view of what is contained in the pleadings, the admissions made by the parties, and the undisputed evidence.
6. Objections to the submission by the judge of questions to the jury for the rendition of a special verdict under the Code, § 37-1104, cannot be made for the first time in a motion for new trial.
7. The gravamen of the complainant's case being that her husband received from her funds belonging to her separate estate under circumstances where the law would imply that he held them in trust for her, and the evidence being sufficient to support such a contention, the verdict and decree in her favor will not be set aside by reason of the fact that she alleged but did not prove that her husband received the same under an agreement and understanding that he was to invest and reinvest the same for her benefit.
8. In a case of this character, the statute of limitations does not begin to run 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.
9. Where the testimony of a party to the suit is conflicting, the conflicts therein will be resolved against him.
10. The verdict was supported by the evidence, and the trial judge did not err in refusing to grant a new trial to the plaintiff in error. Nor was the decree erroneous for any of the reasons assigned.
This is a branch of the case reported under the same name in 196 Ga. 736, 27 S.E.2d 679, a reference to which will indicate the nature of the suit, and the averments of the petition. Both defendants filed answers denying in the main the allegations of the plaintiff. A motion for nonsuit was sustained as to the defendant, People's Loan, Incorporated, to which ruling apparently no exception was taken. The judge directed the jury to return a special verdict, consisting of answers to certain questions, fifteen in number, the questions and answers being as follows:
1. Did cash money in the sum of $3,917.78, referred to in the amendment to paragraphs 6 and 9 of the plaintiff's petition, belong to the plaintiff, Mrs. E. W. Allen, as part of her separate estate at the time the defendant, E. W. Allen, received the same? Answer: Yes.
2. If you answered question 1 to the effect that said money was the property of the plaintiff, Mrs. E. W. Allen, did Mrs. E. W. Allen deliver said money to the defendant E. W. Allen upon the understanding between them that said money was to be invested and re-invested by E. W. Allen for the benefit of the said Mrs. E. W. Allen? Answer: No.
3. Upon what date was said sum of $3,917.78 received by the defendant E. W. Allen? Answer: November 24, 1917.
4. If you answered question 2 in the affirmative, that is, that said money was delivered with the understanding above recited, was there any understanding between said parties that said money, or investments therefrom, would be returned to the plaintiff, Mrs. E. W. Allen, at any specified time? Answer: No.
5. State whether or not the plaintiff made a demand upon the defendant for said sum of $3,917.78 as alleged in the plaintiff's petition. Answer: Yes.
6-A. If you answered that such a demand was made, was such demand refused by the defendant, E. W. Allen? Answer: Yes, November 28, 1941.
6. Did the two parcels of real estate on Indiana Avenue, described in paragraph 6 of plaintiff's petition, belong to the plaintiff, Mrs. E. W. Allen, as part of her separate estate on June 11, 1920? Answer: No.
7. For what amount of money were said properties sold on June 11, 1920, that is to say, what was the gross purchase price of both lots? Answer: $5,000.
8. State the amount of real estate commissions, if any, paid out of the gross purchase-price on the sale of the above-mentioned lots. Answer: $500.
9. Were the proceeds of the sale of said two lots (that is, the total purchase-price less commissions) received by the defendant, E. W. Allen, upon the understanding between him and the plaintiff, Mrs. E. W. Allen, that said money was to be invested and reinvested by E. W. Allen for the benefit of the said Mrs. E. W. Allen? Answer: No.
10. If you answer question 9 in the affirmative (that is, that said money was delivered with the understanding above recited), was there any understanding between said parties that said money, or investments therefrom, would be returned to the plaintiff, Mrs. E. W. Allen, at any specified time? Answer: No.
11. Was a demand made in behalf of the plaintiff, Mrs. E. W. Allen, upon the defendant, E. W. Allen, as alleged in paragraph 13 of the plaintiff's petition as amended? Answer: Yes, November 18, 1941.
12. If you answer that such a demand was made, was such demand refused by the defendant, E. W. Allen? Answer: Yes.
13. Can said original monies of $3,917.78 and the proceeds of sale of the aforesaid two lots of land be traced into present monies or properties in the possession of, or standing in the name of the defendant E. W. Allen? Answer: No.
14. Were said sums of $3,917.78 and said proceeds of sale, or either of them, used to purchase capital stock in Verday Mills and Corley Mills, Inc.? Answer: No.
15. Do you find in favor of the defendant on the pleas of the bar of statute of limitations, filed in this case by the defendant E. W. Allen? Answer: No.
After the jury had answers these questions and their answers were read in open court, the court stated as follows: ...
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