Jones v. Jones
| Decision Date | 26 September 1912 |
| Citation | 75 S.E. 1129,138 Ga. 730 |
| Parties | JONES . v. JONES et al. |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
It was erroneous to overrule an appropriate motion to strike certain portions of the plea of the defendants, which, in effect, sought by parol to ingraft an express trust upon a deed to land, and subsequently to permit witnesses to testify in support of such portions of the plea, over the objection that the testimony sought by parol to establish an express trust to land, and was irrelevant.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1147-1155; Dec. Dig. § 362.*]
The ruling above announced has no application to so much of the defendant's plea as related to the personal property involved in the suit, concerning which there was no effort to declare a trust.
There was no error in the ruling of the court permitting certain persons to be made parties defendant.
[Ed. Note.—For other cases, see Partition, Cent. Dig. § 114; Dec. Dig. § 46.*]
Error from Superior Court, Taliaferro County; D. W. Meadow, Judge.
Action by Wesley P. Jones against Edward P. Jones and others. Verdict for defendants. From an order denying a new trial, plaintiff brings error. Reversed.
Wesley P. Jones instituted an action against Edward P. Jones, alleging that plaintiff and defendant, as tenants in common, owned described land, which had been conveyed to them by John F. Holden, and certain farm tools and other personal property, which they had purchased and used on the farm, and that the defendant had been in exclusive possession of the property, and refused to recognize the plaintiff as a part owner in the property, or account to him for certain rents derived from the same. There were prayers: (a) For receiver; (b) for an accounting for rents, etc.; (c) for partition and general relief and process.
The defendant in. his answer admitted that the land had been conveyed to plaintiff and defendant, as alleged; but in paragraphs 5 to 19, inclusive, of his answer, he set up a parol contract, alleged to have been entered into prior to the conveyance, among the family of the father of plaintiff and defendant, including them, to the effect that the land should be purchased and paid for by all of them, and upon the purchase price being fully paid the title should be taken in the name of the plaintiff and the defendant, but that their father and mother should live on the land and have it as their own for a home as long as either one of them should live, and any one or more of the children who remained unmarried and wished to live there with their mother and father should have the right to do so, and upon the death of both the father and mother the place should then belong absolutely to plaintiff and defendant. By virtue of this family arrangement all of the several members of the family, including plaintiff and defendant, contributed to the payment of the purchase money and succeeded in making full payment, which was followed by execution of a deed conveying the property to plaintiff and defendant, as above stated. After the property had been so conveyed, the entire family, including plaintiff and defendant, continued to reside on it and carry out the terms of the parol agreement for several years; and plaintiff never repudiated the contract until shortly before the institution of the suit, and none of the others ever repudiated it. The personal property referred to in the suit was purchased by the use of the "common fund" produced by all the members of the family in conducting the farm, and by common consent it was understood that all of it should be the property of their mother and father. By reason of the foregoing facts the mother and father have a life interest in the land, and ought to be made parties. It would be inequitable and unjust, and a fraud against the other members of the family, if the plaintiff were allowed to have the land partitioned, and irreparable damages would result from a breach by plaintiff of the family agreement. Whereupon it was prayed: (a) That the father and mother should be made parties; (b) that the interest of all parties in the described real and personal property be fully protected by decree; (c) that specific performance be decreed; (d) that injunction issue; and (e) that the court frame such decree as would meet the exigencies of the case.
By order of court the father and mother were made parties defendant, and allowedgiven time in which to answer. Within the time provided answer was filed by them, in which they adopted the answer filed by the original defendant. The plaintiff moved to strike each and all of paragraphs 5 to 19, inclusive, of the original defendant's answer, on the...
To continue reading
Request your trial
-
Bentley v. Young
...the parties agreed that it should be done. An express trust cannot be ingrafted on the conveyance of the property by parol. Jones v. Jones, 138 Ga. 730, 75 S. E. 1129; Malone v. Malone, 137 Ga. 429, 73 S. E. 660. Speaking of the statute requiring trusts to be in writing, it has been said by......