Martin v. Turner, (No. 6245.)

• Decision Date: 14 March 1928
• Docket Number: (No. 6245.)
• Parties: MARTIN . v. TURNER et al.
• Court: Georgia Supreme Court

166 Ga. 293

143 S.E. 239

MARTIN .

v.TURNER et al.

(No. 6245.)

Supreme Court of Georgia.

March 14, 1928.

Judgment Adhered to May 15, 1928.

(Syllabus by Editorial Staff.)

Error from Superior Court, Jackson County; Jno. S. Wood, Judge.

Action by G. H. Martin against J. C. Turner, executor of the estate of Sarah A. Turner, deceased, and others. To review a judgment dismissing the petition, plaintiff brings error. Affirmed.

Jno. J. Strickland and Rupert A. Brown, both of Athens, for plaintiff in error.

Jere Ayers and Pemberton Cooley, both of Jefferson, for defendants in error.

Syllabus Opinion by the Court.

GILBERT, J. The exception is to a judgment sustaining a general demurrer to the petition which alleged, in substance, as follows: G. H. Martin, petitioner, and J. L. Martin purchased from J. N. Smith a described tract of land for a total consideration of $1,500. Petitioner agreed to pay and paid $600 in cash, and J. L. Martin agreed to pay $900. J. L. Martin borrowed $900 from Sarah A. Turner, and the entire purchase price was accordingly paid. J. C. Turner, son of Sarah A. Turner, and a lawyer and banker, was employed by all concerned todraw the papers in such manner as to carry out the agreement and to protect all parties interested. "It was understood by the parties that the deed from J. N. Smith was to be drawn so as to convey to petitioner a six-fifteenths interest and to the said Sarah A. Turner a nine-fifteenths interest in and to said described land, so as to protect their said several interests; petitioner having paid $600 of the purchase money, and the said Sarah A. Turner having loaned $900 to J. L. Martin to pay his part of the same." "On April 3, 1914, J. 0. Turner, the defendant, wrote J. Li. Martin as follows: 'In reference to the loan, I will expect for Mr. Smith to make a deed to Hamp Martin, and then for Hamp to make a warranty deed to Mrs. Sarah A. Turner.' The said J. C. Turner drew all the papers. Plaintiff was unwilling to have the deed made in this way, and it was agreed that the papers should be drawn so as to protect both Mrs. Turner and plaintiff. Petitioner did not know the effect of the papers, and for a long while thought the bond for title as made to him had that effect." The deed from Smith should have conveyed the land to Sarah A. Turner and petitioner in proportion to the amounts paid, but instead It conveyed the entire interest in the land to Sarah A. Turner for the expressed consideration of $900, and she thereupon executed a bond for title obligating herself to make petitioner a deed to the entire tract upon payment to her by J. L. Martin of his note for $900. Petitioner was "entirely unskilled in the law, and did not know the effect of said papers, and is persuaded that the said J. C. Turner himself did not realize the effect of them, and by mistake of law executed the papers as he did instead of executing them so as to carry out the contracts made." The effect of the deed from Smith to Sarah A. Turner was to create a trust in so far as petitioner's interest was concerned, she holding the legal title for a nine-fifteenths interest in the land and an equitable title in favor of petitioner for the remaining six-fifteenths. Petitioner has been in actual possession of the land since April 7, 1914, the date on which said purchase was made, and during that time has in good faith built on said land a dwelling at a cost of $700, which added that much or more to the value of the property. The land can be partitioned so as to equitably divide off to him six-fifteenths thereof to include said dwelling; but, if it could not be divided in kind, petitioner would be entitled to be reimbursed to the extent of the cost of said dwelling. Sarah A. Turner died July 1, 1914, and J. C. Turner is her duly qualified executor. J. N. Smith is dead, and his widow is his executrix. J. L. Martin is dead, and petitioner, as his...