Berry v. Brunson

• Decision Date: 13 June 1928
• Docket Number: 6537.
• Citation: 143 S.E. 761,166 Ga. 523
• Parties: BERRY et al. v. BRUNSON.
• Court: Georgia Supreme Court

143 S.E. 761

166 Ga. 523

BERRY et al. v. BRUNSON.

No. 6537.

Supreme Court of Georgia

June 13, 1928

Syllabus by the Court.

An implied trust results from the fact that one person's money has been invested in land and the conveyance taken in the name of another. Such implied trust may arise from the payment of a portion of the purchase money.

(a) To set up and establish such implied trust, it is only necessary to allege and prove that one person furnished all or a portion of the purchase money of the land, and that the deed was taken in the name of the person to whom the money was so furnished.

(b) The answer of the defendant set up a valid equitable defense and a good cause of action against the plaintiffs, and the trial judge did not err in overruling the motion of the plaintiffs to strike so much of the answer as undertook to set up an implied trust in her favor in the land in dispute.

A party claiming under the grantor in a security deed cannot show that the grantee therein was liable to the grantor for damages arising from a conversion of the personal property of the grantor, and have the same treated as payment or extinguishment of the debt secured by such deed, in the absence of insolvency or nonresidence of the grantee, in order to show that the exercise by the grantee of a power of sale in such deed was void, for the reason that the secured debt had been thus paid. The trial judge erred in not striking the paragraph of the answer which set up the above facts in defense to the present action.

An assignment of error on the order overruling a motion for new trial, which is not based upon any ground of the motion, but urged for the first time in the brief of counsel of the complaining party, will not be considered by this court.

The testimony of an incompetent witness, if it is material when received without objection, is of probative value, and will be considered and given such weight as the jury deems it entitled to, in view of his interest and other circumstances.

Only such questions need be put to the jury, under the statute authorizing special verdicts, as will enable the jury to find the facts in issue and not admitted by the pleadings. The trial judge should not submit to the jury a question for the purpose of eliciting a fact which is admitted by the party against whom it adversely operates. Such a question is ab initio immaterial, and an answer thereto finding the fact contrary to the admission of the party in his pleadings should be disregarded by the trial judge. In rendering his decree, the trial judge can disregard the answer to such a question, when the other facts found by the jury, and the admissions in the pleadings of the party against whom the decree is rendered, support the decree.

The answer to the second question propounded to the jury, in which they found that the defendant was the owner of the whole equitable title to the land in dispute, is without evidence to support it.

The answer of the jury to the third question propounded to them is based upon evidence.

The other assignments of error do not require the grant of a new trial.

(a) The error dealt with in the second division of this opinion would not require the grant of a new trial, for the reason that the plaintiffs were not hurt thereby; but, as the case goes back for another trial, we direct that the court below strike the paragraph of the answer there dealt with.

(b) As we grant a new trial on account of the error dealt with in the sixth division of this opinion, we do not express any opinion upon the weight of the evidence in the case.

Error from Superior Court, Richmond County; A. L Franklin, Judge.

Action by Joe Berry and another against Sarah Brunson, in which administrator of Jack Berry was made party defendant. Judgment for defendant named, plaintiffs' motion for new trial was overruled, and plaintiffs bring error. Reversed.

Fleming & Fleming, of Augusta, for plaintiffs in error.

Pierce Bros., of Augusta, for defendant in error.

Syllabus OPINION.

HINES J.

1. Does the answer of the defendant set up a cause of action against the plaintiffs? After denying the allegations of the petition, the defendant seeks to set up and enforce an implied trust in her favor, arising from the payment, with her money, of a part of the purchase price of the land. She alleges that she turned over to Jack Berry $250 to pay upon the purchase price when the land was bought by him, relying upon Berry to take a deed thereto in her name, but that, instead of taking the deed in her name he took the same to himself. She does not allege that there was any understanding or agreement between her and Berry by which the title to the land was to be taken in her name. She asserts that, having furnished to Jack Berry most of the money with which to buy this land, and he having taken title in his own name instead of hers, there arose a resulting trust in her favor; and that Berry fully recognized the fact that title to said land was in her, but failed to execute to her a deed thereto prior to his death. Do these allegations make a case of a resulting or implied trust in favor of the defendant? A trust is 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." Civil Code, § 8739. Such implied trust may arise from the payment of a portion of the purchase money. Hall v. Edwards, 140 Ga. 765, 767, 79 S.E. 852; 26 R.C.L. 1224, § 70. A trust of this kind does not arise from, or depend upon, any agreement between the parties. It results from the fact that one person's money has been invested in land, and the conveyance taken in the name of another. It is a mere creature of equity. 26 R.C.L. 1214, § 57. Such a trust never arises out of a contract or agreement between the parties, but arises by implication of law from their acts and conduct apart from any contract. 39 Cyc. 104, B. It is only necessary to allege and prove that one person furnished the purchase money for the land in controversy, and that the deed was taken in the name of the person to whom the money was so furnished. No presumption of a gift or loan arises. 26 R.C.L. 1231, § 77. In view of the principles announced, the answer alleged facts from which the law implies a trust in this land in favor of the defendant, arising from the fact that she furnished a part of the money with which it was purchased, and to the extent of the purchase money furnished by her. It follows that the trial judge did not err in overruling the motion of the plaintiffs to strike so much of the answer of the defendant as sets up this implied trust in her favor.

2. The court erred in not striking paragraph (o) of the answer. In this paragraph the defendant alleges that the plaintiffs had taken and converted certain personal property of the grantor in the security deed to their own use, and that the value of this property so converted was greater than the debt due under this deed. The defendant, not expressly but inferentially, undertakes to set off the value of this converted property against the debt due the plaintiff, Susan Berry, from the estate of Jack Berry, or to treat the value of this property as a payment or extinguishment of this debt; and contends that, for this reason, the power of sale in the security deed could not be exercised by Susan Berry. There is no allegation that the estate of Jack Berry was insolvent, nor is there any other equitable reason set up why the value of this converted personalty should be set off against this indebtedness. The defendant may set up as a defense all claims against the plaintiff of a similar nature with the plaintiff's demand. Civil Code, § 5521. To an action ex contractu damages sounding in tort cannot be pleaded in defense, where neither the insolvency nor nonresidence of the plaintiff is set up. Potts-Thompson Liquor Co. v. Capital City Tobacco Co., 137 Ga. 648, 74 S.E. 279; Standhardt v. Hardin, 145 Ga. 147, 88 S.E. 565; Civil Code, § 4593. So the defendant could not show that the grantee in the security deed was liable to the grantor therein for damages arising from the conversion of the personal property of the grantor by the grantee, and cannot have such damages treated as a payment on, or an extinguishment of, the secured debt, so as to prevent the grantee from exercising the power of sale contained in the security deed This being so, the judge erred in not sustaining the motion of the plaintiff to strike the above paragraph of the answer.

3. In answer to the first question propounded, the jury found that the debt due by Jack Berry to Susan Berry under the security deed had been fully paid, prior to the sale of the land under the power of sale therein embraced. In the order overruling the motion for new trial, the judge states that he disregarded the answer of the jury to the above question upon the ground that there was not sufficient evidence to show payment, and entered a decree that the defendant pay back the $200 loaned, with interest to April 8, 1926, and any taxes paid by plaintiffs since the alleged tender, with interest thereon. To the above order the plaintiffs and the administrator of Jack Berry excepted. Counsel for the plaintiffs insists that the judge was not willing to allow the verdict to stand in so far as it found that the debt from Jack Berry to Susan Berry had been paid; that he set aside to this extent the verdict; that the judge could not of his own motion require payment of this debt in the face of the finding of the jury that it had already been paid; and that, at most, the judge should have granted a new trial, with the option to the defendant to avoid such new trial by making the payment. The...