Bullard v. Bullard
| Decision Date | 11 April 1958 |
| Docket Number | No. 20002,20002 |
| Parties | Mrs. E. F. BULLARD v. E. F. BULLARD. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The court did not err in overruling the demurrers of the defendant.
2. There being no competent evidence to establish the essentials of an implied trust, or to refute the presumption of a gift from the husband to the wife, the verdict was without evidence to support it.
E. F. Bullard filed an action against his wife to recover an alleged one-half interest in certain real and personal property. In substance it was alleged: On January 30, 1946, the defendant purchases from W. K. Brooks certain lands, as shown by deed recorded in Deed Book 33, pages 449-50, of Jeff Davis County. On January 3, 1951, W. K. Brooks executed to the defendant a quitclaim deed to cure an error in the description of the lands described in the deed above referred to, which deed is duly recorded. The defendant used money in which the plaintiff had a 50% interest to purchase the lands aforesaid, and she acquired this money in the following manner: On or about March 5, 1945, the plaintiff and the defendant sold their equity in a stock of merchandise and fixtures, owned jointly, for $4,000, and the plaintiff turned over the money to the defendant to keep for them, and he did not either give or lend his half-interest thereto. Without his consent she used $3,000 of this money to make a down payment on the lands described, and the balance of the purchase price was paid from the sale of timber on the land, amounting to $3,250. The plaintiff and the defendant recently owned cafe equipment, which was destroyed by fire on June 24, 1957. According to his information and belief, the cafe was insured for between $2,000 and $3,000, in the defendant's name. The plaintiff and the defendant owned and operated this cafe as a joint undertaking, with an understanding that each would have a one-half interest therein. The defendant paid the premium for the insurance from their joint funds.
The prayers were for process, and that the plaintiff be declared to be the owner of a one-half interest in the real estate described, and the owner of a one-half interest in the proceeds of the insurance policy or policies.
The defendant's demurrers to the petition were overruled. After the plaintiff and the defendant had introduced all of their evidence, the defendant moved for a directed verdict in her favor, upon the ground that the evidence was insufficient to make a case of implied trust, as relied upon by the plaintiff. This motion was denied. The defendant's motion for new trial and for judgment notwithstanding verdict were both denied.
The bill of exceptions assigns error on the judgments overruling the defendant's demurrers, and denying her motion for judgment notwithstanding verdict and her motion for new trial.
Gordon Knox, Jr., Hazelhurst, Jack W. Ballenger, Baxley, for plaintiff in error.
Charles W. Heath, Hazelhurst, for defendant in error.
1. Trusts are either express or implied, implied trusts are such as are inferred by law from the nature of the transaction or from the conduct of the parties. Code, § 108-104. 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. Code, § 108-106.
McCollum v. McCollum, 202 Ga. 406, 43 S.E.2d 663, 666; Hudson v. Evans, 198 Ga. 775, 32 S.E.2d 793; Stevense v. Stevens, 204 Ga. 340, 49 S.E.2d 895.
The petition as amended having alleged that the plaintiff 'had a 50% interest' in the money used to purchase the described lands, and that the cafe was 'a joint under taking with the understanding that each would have a one-half interest therein,' the interest claimed by the plaintiff was sufficiently alleged to withstand the general demurrer.
The special demurrer attacking the petition on the ground of duplicity was filed approximately 90 days after the filing of the petition, and after the return term to which the petition was filed. If the petition as originally filed is subject to special demurrer, an amendment of the petition in other respects will not authorize the filing of such special demurrer after the appearance day as shown by the process. Code, § 81-301, as amended, Ga.L.1953, Jan.-Feb. Sess., pp. 21-22; Wardlaw v. Southern Ry. Co., 199 Ga. 97, 99(4-a), 33 S.E.2d 304; Cooper v. Mims, 204 Ga. 357(2), 49 S.E.2d 824. The court did not err, as contended, in overruling the defendant's demurrers.
2. 'The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague, or equivocal.' Southern Ry. Co. v. Hobbs, 121 Ga. 428, 49 S.E. 294; Davis v. Akridge, 199 Ga. 867, 868(2), 36 S.E.2d 102; Wright v. Anthony, 205 Ga. 47, 50, 52 S.E.2d 316; Partain v. King, 206 Ga. 530, 57 S.E.2d 617.
In the present case the plaintiff's testimony was too vague, uncertain, indefinite, and contradictory to make an issue of fact as to any interest by him in the lands described. The plaintiff relied upon his testimony that his wife used $3,000 of their joint funds to purchase the lands described, and testified that these funds were derived from the sale of their interest, or $4,000, in certain personal property. The sales contract pertaining to this personal property was admitted in evidence. It shows that the sale price of the property was $3,000, and not the amount claimed by the plaintiff, and that certain accrued taxes, amounting to approximately $500, were paid out of the sale price. It was impossible for the jury to determine what amount of the sale price remained in the possession of the wife after all obligations were paid.
If, however, by any method of calculation, the jury could have determined what amount remained after the payment of the obligations existing at the time of the sale of the personal property, the plaintiff's testimony was wholly insufficient to overcome the presumption of a gift to the wife. Code, § 108-116. On direct examination, the plaintiff was asked: 'As such were you familiar with her financial...
To continue reading
Request your trial
-
Sellers v. State
...Ga. 54(1), 121 S.E.2d 122; Hearn v. Leverette, 213 Ga. 286, 99 S.E.2d 147; Minor v. Fincher, 213 Ga. 365, 99 S.E.2d 78; Bullard v. Bullard, 214 Ga. 122, 103 S.E.2d 570. Where the testimony of a party who offers himself as a witness is self contradictory, vague or equivocal it must be constr......
-
Oxford v. Shuman
...Pierce v. Harrison, 199 Ga. 197(5), 33 S.E.2d 680; Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98(2), 70 S.E.2d 734; Bullard v. Bullard, 214 Ga. 122, 123, 103 S.E.2d 570; Levy v. Logan, 99 Ga.App. 253(3), 108 S.E.2d 307; Speilberg v. McEntire, 105 Ga.App. 545, 125 S.E.2d 134. This rule is a......
-
Gordon v. Merritt (In re Krieg)
...that state law determines interests in property."). Under Georgia law, trusts are either express or implied. Bullard v. Bullard, 214 Ga. 122, 123, 103 S.E.2d 570 (1958). "An implied trust results from the fact that one person's money has been invested in land, and the conveyance taken in th......
-
Robertson v. Robertson
...the second property, and a portion of the insurance premiums for a policy only in the deceased co-tenant's name); Bullard v. Bullard,214 Ga. 122, 123(1), 103 S.E.2d 570 (1958)(holding that a husband's action to enforce an implied trust against his wife was sufficient to withstand a general ......