Pantone v. Pantone

• Decision Date: 15 October 1947
• Docket Number: No. 15978.,15978.
• Citation: 44 S.E.2d 548
• Parties: PANTONE. v. PANTONE et al.
• Court: Georgia Supreme Court

44 S.E.2d 548

PANTONE.

v.PANTONE et al.

No. 15978.

Supreme Court of Georgia.

Oct. 15, 1947.

Syllabus by the Court.

1. Where a petition seeks to establish an express trust, the presumption upon demurrer that the proof will be established in writing is overcome where it is clear from the allegations that only parol declarations are relied upon.

2. The allegations of the original petition in the instant case, standing alone, would be an attempt to assert an express trust by parol, and this cannot be done; but the allegations of the amendment are sufficient to allege inceptive fraud, as distinguished from the failure to perform some act in the future according to an agreement, which together with the other allegations would set forth a cause of action for cancellation.

Error from Superior Court, Sumter County; W. M. Harper, Judge.

Suit in equity by Clifford Pantone and others against Earnest Pantone to enjoin defendant from asserting that plaintiffs had no interest in a house and lot inherited by all the parties from their deceased mother and to cancel plaintiffs' warranty deed conveying such property to defendant. Judgment overruling general and special demurrers to plaintiffs' amended petition, and defendant brings error.

Affirmed.

Clifford, Tony, and Moley Pantone filed a petition against their brother Earnest Pantone alleging: that at the death of their mother they all inherited from her a certain described house and lot in Americus together with household and kitchen effects; that a few months after their mother's death Earnest Pantone solicited all of the brothers that he be permitted to remain in the home, and that, if they would make him a deed to the lot, he would hold it as long as he lived as a home for them, and it would always be their home and they could come and go and use it as a home just as they did during the time their moth-er lived; and that he further promised to pay all taxes, make it his home, keep up the repairs, look after it generally, and keep it in good condition. It was further alleged: that they yielded to his persuasion and solicitation and executed a deed to him in July, 1940; that in April, 1947, he married, moved his wife into the home and claimed it as his individual property, and asserted that the plaintiffs had no interest in the house and lot; and that in the event of his death his wife would apparently inherit the property. The copy of the deed attached to the petition was a plain warranty deed, reciting the consideration as $1 and other valuable consideration.

By amendment it was further alleged that the statements and representations made by Earnest Pantone were false and fraudulent, that he knew they were false and fraudulent at the time he made them, and that they were made for the purpose of inducing the petitioners to sign the deed; and that they signed the deed for the reason that he was their brother and they had implicit confidence in him and believed what he said; and that the false and fraudulent...