Jackson v. Jackson

• Decision Date: 28 September 1920
• Docket Number: 1747.
• Citation: 104 S.E. 236,150 Ga. 544
• Parties: JACKSON v. JACKSON.
• Court: Georgia Supreme Court

104 S.E. 236

150 Ga. 544

JACKSON v. JACKSON.

No. 1747.

Supreme Court of Georgia

September 28, 1920

Syllabus by the Court.

Where a husband pays the purchase money of land from his own funds and has the land conveyed to his wife, the presumption which the law makes is that the husband intended to make a gift to his wife; but the presumption is a rebuttable one, and a resulting trust in favor of the husband may be shown. Parol evidence of the nature of the transaction, or the circumstances, or the conduct of the parties, is admissible to rebut the presumption of a gift; but in order to rebut the presumption of a gift the proof must be clear and convincing.

The trust which arises in such a case from the facts and the nature of the transaction is not destroyed by the express verbal, and therefore unenforceable, agreement of the wife to hold the title for the use of the husband.

The amendments to the plea of general issue, disallowed by the court, set out a valid defense to the action, and the judgment of the court disallowing the amendments and subsequently directing a verdict for the plaintiff upon the prima facie case made was error.

Error from Superior Court, Jones County; J. B. Park, Judge.

Ejectment by Amelia Jackson against George Jackson. Amendments to the plea of the general issue disallowed, and judgment for plaintiff on a directed verdict, and defendant brings error. Reversed.

F Holmes Johnson and Willard W. Burgess, both of Gray, and W A. McClellan, of Macon, for plaintiff in error.

Miller & Garrett, of Macon, for defendant in error.

GEORGE J. (after stating the facts as above).

The doctrine of a resulting trust in favor of a third person paying the purchase money of an estate is declared in Anon (1683) 2 Vent. 361 (entitled Bird v. Blosse, 1 Vern. 366) as follows:

"Where a man buys land in another's name, and pays money, it will be in trust for him that pays the money though no deed declaring the trust, for the Statute of 29 Car. 2, called the statute of frauds, doth not extend to trusts, raised by operation of law."

In Dyer v. Dyer, 2 Cox, 92, 93, 1 White & Tudor's Lead. Cas. Eq. 203, Lord Chief Baron Eyre thus explained the doctrine:

"The clear result of all the cases, without a single exception, is that the trust of a legal estate, whether freehold, copyhold, or leasehold, whether taken in the names of the purchaser and others jointly, or in the name of others without that of the purchaser, whether in one name or several, whether jointly or successive, results to the man who advances the purchase money. This is a general proposition, supported by all the cases, and there is nothing to contradict it; and it goes on a strict analogy to the rule of the common law that, where a feoffment is made without consideration, the use results to the feoffer."

In the day of uses title to the bulk of land in England was not in the owners, but in feoffees to the use of the owners. It was therefore, to the judicial mind, natural and logical to presume that one who received a conveyance from the seller, by direction of the payer of the purchase money, was to hold in trust for the buyer or payer. After the statute of frauds (cf. Civil Code of 1910, § 3739) the courts continued to raise the presumption as a presumption of fact. Where A. pays the purchase money, and the title is conveyed by absolute deed to B., who is legally a stranger to A., and who makes no express promise, a typical instance of a resulting trust is presented. The trust is said to result in law from the acts of the parties. Lloyd v. Spillet, 2 Atk. 150; 1 Perry on Trusts (6th Ed.), c. 5, § 124; 1 Beach on Trusts, c. 10. Such a trust is implied in fact. Strictly speaking, as we shall presently see, it may be and is an intended trust; but the intention is inferable, as has been said, from the conduct of the parties and lack of family relationship. Where A. pays the purchase money, and the title is conveyed by absolute deed to A.'s wife or child, or to a person to whom A. stands in loco parentis, and who makes no express promise, a trust does not result; the presumption of law being that a provision, advancement, or gift, was intended. In Dyer v. Dyer, supra, it was said by Lord Chief Baron Eyre:

"The circumstances of one or more of the nominees being a child or children of the purchaser is held to operate by rebutting the resulting trust; and it has been determined in so many cases that the nominee being a child shall have such operation as a circumstance of evidence that it would be disturbing landmarks if we suffered either of these propositions to be called into question, namely, that such circumstance shall rebut the resulting trust, and that it shall do so as a circumstance of evidence. I think it would have been a more simple doctrine if the children had been considered as purchasers for valuable consideration."

See Lewin on Law of Trusts (12th Ed. 1911), 191; 1 Perry on Trusts (6th Ed.) § 143.

Our Code classifies trusts as "either expressed or implied." Civil Code, § 3731.

"Express trusts are those created and manifested by agreements of the parties. Implied trusts are such as are inferred by law from the nature of the transaction, or the conduct of the parties." Section 3732.

"All express trusts must be created or declared in writing." Section 3733.

"Trusts are implied--1. 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. 2. Where, from any fraud, one person obtains title to property which rightly belongs to another. 3. Where, from the nature of the transaction, it is manifest that it was the intention of the parties that the person taking the legal title shall have no beneficial interest. 4. Where a trust is expressly created, but no uses are declared, or are ineffectually declared, or extend only to a part of the estate, or fail from any cause, a resulting trust is implied for the benefit of the grantor, or testator, or his heirs." Section 3739.

In several states trusts resulting from the payment of the purchase money and the taking of the conveyance in the name of another have been abolished by statute. The section of our Code last above quoted is but a restatement of the general equity principles, and is simply declaratory of existing equity rules. Resulting and constructive trusts are not abolished and are not within the statute of frauds as enacted in this state. In the early case of Miller v. Cotton, 5 Ga. 341, 346, Lumpkin, J., speaking for the court, said:

"The eighth section (of the statute of frauds) exempts from the operation of the act trusts arising or resulting by the implication or construction of law. What then are resulting trusts, which before the act were disposable by a bare declaration by parol, and are considered since its passage on the same footing?"

The learned judge answers the inquiry by quoting from Lord Hardwick in Lloyd v. Spillet, 2 Atk. 148, 150. The suggestion is made, however, that Lord Hardwick's enumeration is not exhaustive. While it is beside the issue here, treating the trust as resulting, and not constructive, it is interesting to note that Judge Lumpkin expressed the view that the fraud necessary to a constructive trust was active or positive fraud. Our Code declares:

"As between husband and wife, parent and child, and brothers and sisters, payment of purchase money by one, and causing the conveyance to be made to the other, will be presumed to be a gift; but a resulting trust in favor of the one paying the money may be shown and the presumption rebutted." Section 3740.

Also:

"In all cases where a trust is sought to be implied, the court may hear parol evidence of the nature of the transaction, or the circumstances, or conduct of the parties, either to imply or rebut a trust." Section 3741.

In all cases the counter presumption in favor of a grantee who is the wife or child of the purchaser is a presumption of fact, and not of law, and can be overthrown by clear and convincing proof of the real intention of the parties. Institution v. Meech, 169 U.S. 398, 407, 18 S.Ct. 396, 400, 42 L.Ed. 793, 798.

It is insisted that the plaintiff in error, in his rejected amendments, sought to establish a trust in the land by parol testimony. The agreement by the wife to hold the land for the benefit of the husband being express, it is contended that the case is within the statute of frauds. It will be noticed that the husband did not aver that the conveyance was made to the wife upon an express declaration by him or upon an express oral promise by her that the land should be held for the use of the husband. It is, however, averred that the husband did not intend to make a gift to the wife, and that the wife understood that no gift was intended, but understood that she was to hold the land for the husband and was to make a conveyance to him as he might desire. If the amendments are construed as alleging an express oral agreement by the wife, it is difficult to see how the trust, conceding the trust, can be logically treated as a resulting trust. As we have said, a resulting trust is an implied in fact or inferred trust. It is not based upon fraud or misrepresentation. On the contrary, the basis of the true constructive trust is fraud, actual or "constructive," and our own cases, it must be conceded, seem to require actual fraud. It may be that the trust is not resulting, but constructive. This is the view of Dean Ames (see 20 Harv. Law Rev. 349) and of Prof. Costigan of the Northwestern University (see 27 Harv. Law Rev. 437). According to these writers, the express oral promise takes the case out of the category of resulting trusts, and equity, upon the repudiation of...