Dixon v. Dixon, 18934

• Decision Date: 09 May 1955
• Docket Number: No. 18934,18934
• Citation: 87 S.E.2d 369,211 Ga. 557
• Parties: H. A. DIXON v. Mina Lee DIXON.
• Court: Georgia Supreme Court

Page 369

87 S.E.2d 369

211 Ga. 557

H. A. DIXON v. Mina Lee DIXON.

No. 18934.

Supreme Court of Georgia.

May 9, 1955.

Syllabus by the Court.

1. The allegations of the petition as amended are sufficient to allege inceptive fraud, as distinguished from the failure to perform some act in the future according to an agreement, and the trial court did not err in overruling the defendant's general and special grounds of demurrer.

2. Where a promise was made by a grantee as an inducement or consideration for the execution of a warranty deed by the grantor, by which promise he agreed to take title to the property, farm it, pay off the debt existing thereon, and then reconvey it to the grantor, evidence showing a mere failure to comply with his promise was insufficient to establish an inceptive fraudulent intent; and there being no other evidence showing that, at the time the agreement was made, it was done with the intent to defraud, or that the farm had been worked out of debt, the evidence was insufficient to support the verdict for the grantor.

3. The instruction of the court, that express trusts are those created and manifested by agreement of the parties, stated a correct principle of law which, considered in connection with the charge as a whole, could not have been misleading or confusing to the jury.

4. The trial court erred in failing to instruct the jury that, to entitle the petitioner to a reconveyance of the property, the proof submitted to establish the oral contract must be shown so clearly, strongly, and satisfactorily as to leave no reasonable doubt as to the agreement.

Mrs. Mina Lee Dixon filed in Pierce Superior Court, against H. A. Dixon, a petition which as amended alleged substantially the following: Petitioner is the owner of and is living on a described tract of farm land, which was inherited from her father and which is worth, and has, for the last three years, been worth not less than $4,000. Defendant, by taking advantage of petitioner's lack of business ability, and her implicit and full confidence in defendant, and his good faith, honesty, promises, and integrity, procured an absolute deed to be made to him by petitioner to the property in question, upon his false and fraudulent representation and promise that he would use the deed for her benefit, thus defrauding her out of her property. On October 24, 1947, petitioner borrowed from L. H. Oden $1,200 for the purpose of building a house on the land, and executed to him a security deed to cover the indebtedness. Petitioner and her husband suffered illness and sickness for a great portion of the time thereafter, and due largely to these clrcumstances, she had not been able to pay off the loan by the latter part of 1951, at which time the debt, including interest, amounted to about $1,440, and she was advised by Mr. Oden that he would foreclose if the loan was not paid. At the time the place was worth at least $4,000, and petitioner could have sold it for at least $3,500 cash, and had an offer of $3,500 for it. However, both she and her husband were most anxious to retain the land, which was their home, and did not wish to sell it, or permit it to be sold for collection of the debt. The defendant is the older brother of petitioner's husband. He was a successful business man, engaged as a contractor and builder, and petitioner and her husband both had great respect for his business ability, and felt that he was capable of advising them and aiding them in making some arrangement whereby they could retain their home. The relations between defendant and petitioner and her husband were most cordial and close, and he had always advised petitioner to the best of his ability when called on to do so. Petitioner's husband worked for defendant a good deal of the time, and he had the utmost confidence in his brother and so did petitioner. Both thought that they could depend upon defendant for advice, aid, and assistance freely, and they trusted him implicitly, and depended upon him for advice and aid. Therefore, petitioner went to defendant so ask him for his advice and aid in saving her home for her and her husband. She and her husband told defendant of the conditions faced by them, and of their extreme desire not to be forced to sell their home, but to keep it, and sought his advice and assistance in the matter. After a thorough discussion, defendant said he would help them. He said that he would take charge of the operation of the farm for petitioner, and would undertake to work it out of debt for them and save the home place for them, but that it would be necessary, in order for him to handle the matter, the petitioner make over the place to him in such manner as to place him in control of the property and in such was that he could handle the sale of tobacco grown on the farm under the government allotment plan. He represented orally that the property must be made over to him in order that he could be in position to handle the sale of tobacco under the government plan. This represenation was not true, and was known by defendant not to be true, but was believed by both petitioner and her husband, who both reposed entire confidence in defendant. The statements of defendant that he would undertake to manage the operation of the farm for petitioner, and work it out of debt for her, and in order to do so, it would be necessary for petitioner to make over the place to him so that he would have control, and so that he could manage the sale of tobacco under the government allotment plan were believed entirely by petitioner, and induced her to execute papers thereafter prepared by defendant. The untrue representations were made by defendant for the purpose of inducing petitioner to execute the papers. Defendant at the same time orally represented to petitioner that, as soon as the indebtedness was worked out for her by him and paid off for her, he would give the land back to her. Petitioner had complete confidence in defendant and believing and relying upon the truth of his representations, and upon his desire to act for her in the matter, and to asve her home for her, readily agreed to do whatever he had advised was necessary in order for him to act for her in saving the home place for her. The paper which petitioner afterwards found was a deed was executed without any consideration in money being paid to her, and she was induced to sign same solely by reason of the untrue representations made to her by defendant, which she believed to be true. By reason of the untrue representations of defendant, she was induced to believe that defendant honestly intended to take control of the operation of the farm for her, and to work it out of debt for her, and to save her home for her because of his love for his brother, the husband of petitioner and his friendship for petitioner as the wife of his brother. Plaintiff has learned that all of the representations of defendant were false, and were made by him for the purpose of inducing petitioner to sign the deed, and thus to secure title to the home place for himself, and not to protect and save the place for petitioner, and that defendant at the time of making the representations knew they were untrue, and never intended to act for petitioner in the matter. Defendant almost immediately made arrangements with the Blackshear Bank to borrow sufficient funds on her property to pay off L. H. Oden, and borrowed the money on her home place as the sole security therefor, and the loan of L. H. Oden was paid off. Thereafter, petitioner allowed defendant to assume control of the farm operations on the place and to handle same for her, but she did not surrender possession of the place nor move from same until after suit was filed. She had no knowledge of the fraudulent effort of defendant to claim the property as his own until a short time before suit was filed, but though that he was acting for her as he had represented in good faith. Defendant by reason of the untrued representations made by him fraudulently, which were believed and depended upon by petitioner, has secured apparent title to her home place. Now he seeks fraudulently to retain the property for his use. By reason of such fraud he is legally a trustee for petitioner and holds the property under an implied trust, and title should be decreed to be vested in petitioner, and after an equitable accounting between the parties the deed should be canceled, or else defendant should be required to reconvey the property to petitioner. Defendant has paid to L. H. Oden the amount owing to him by petitioner, and had the security deed from petitioner to L. H. Oden canceled. Defendant has made a sufficient amount of money out of the operation of the farm to reimburse him for the money paid out on behalf of petitioner. If, however, it should appear, upon an accounting by defendant of his receipts and disbursements in the operation of the farm, that the profits derived therefrom are insufficient to reimburse him, petitioner is ready and willing to do equity in the matter and to pay him the difference so that he will receive back all that has paid out on her behalf. Defendant is claiming the land as his own, refuses to give it back to petitioner, his given her and her husband verbal notice to vacate their home, and says that he is not going to give it back to her as he promised to do at the time he got her to sign the deed, and denies that he made such promise. Defendant is undertaking to sell the property. The petitioner prayed: that process issue; that the court decree that the defendant holds title to the property under an implied trust arising from fraudulent conduct on his part, which induced petitioner to execute the deed to him, and that the equitable title was at all times vested in petitioner; that, in order to vest title in petitioner immediately, the court either decree that defendant shall make a deed of reconveyance to petitioner, or that the deed from petitio...