Price v. Price
| Docket Number | 16724. |
| Decision Date | 14 July 1949 |
| Citation | 54 S.E.2d 578,205 Ga. 623 |
| Parties | PRICE v. PRICE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1.
(a) The petition stated a good cause of action for a part of the relief prayed for and it was error to sustain a general demurrer going to the whole pleading.
2. The trial court properly overruled all grounds of the plaintiff's demurrer to the defendant's original answer, except the special ground of the demurrer to paragraph nine of the answer, which should have been sustained.
3. The trial court properly overruled the 1st, 3d, 5th, 6th, 7th 8th, 9th, and 10th grounds of the plaintiff's demurrer to the amendment to the defendant's answer for the reasons pointed out in the corresponding division of the opinion.
4. It was error to sustain the defendant's plea in bar and dismiss the plaintiff's petition.
Walker H. Price filed his equitable petition against Albina A Price, his former wife, in Chatham Superior Court, alleging substantially that on February 11, 1937, he purchased a described lot of land at Thunderbolt, Chatham County, Georgia, and that on the strength of his personal credit a named firm advanced to the grantor the sum of $125 as payment for the lot; that as a matter of convenience the plaintiff had the deed drawn in the name of the defendant. He alleges further that on the strength of his personal credit the same firm who advanced for him the purchase price of the lot, furnished the labor and materials to build a home on the lot, with the understanding that as soon as it was completed the plaintiff would secure a loan on the property and pay this firm for the labor and materials; that in May, 1937, after the house was completed, the plaintiff negotiated a loan for a designated amount, which was insufficient to pay the firm for the labor and materials, and that the plaintiff paid he difference of $100 from his own funds. He alleges that at the time this loan was obtained it was fully understood by all parties concerned that the papers would be drawn in the name of his wife, but that the plaintiff would pay off the indebtedness, and that he did pay notes evidencing the loan in the total amount of $1419.15 out of his own individual earnings, as well as taxes and other expenses, and during this time the defendant recognized the property as his, and stated on several occasions that she would transfer the title to him any time he wanted her to do so. The petition further alleges that in September, 1945, the plaintiff bought another house and lot at Thunderbolt, Chatham County, Georgia, which is particularly described; that he, from his own personal funds, made a down payment of $25 before the property was conveyed; that he negotiated a loan of $5000 to pay off a balance of $4500 due on this property, and also the remaining indebtedness of $455.85 on the place first referred to, the papers being made out in the defendant's name. The petition further alleges that it was understood by all parties concerned that the plaintiff would pay off the indebtedness, and alleges that he did pay 45 notes totalling $2391.91, the first note being paid on or about November 1, 1945, and the last payment by him being made in October, 1946, when the plaintiff and the defendant separated; that the plaintiff made a $2000 payment on said notes when he sold the first place in May, 1946.
The petition further alleges that at the time of the separation of the plaintiff and the defendant in October, 1946, it was understood between them that the payments on the loan would be kept up by the defendant out of the $100 a month alimony payments which the plaintiff volunteered to make to the defendant. It was agreed between them that the defendant would continue to live on said property and maintain a home for herself and their two children but that the plaintiff would retain his equitable title to the property. The plaintiff has since learned that the defendant moved off of the property in February, 1948, and has had it rented since that time for $35.00 per month.
It is further alleged that during the entire time that the plaintiff and the defendant lived together the defendant recognized the plaintiff's equitable title to the property, and did not assert any claim thereto until after their separation, the plaintiff having exercised acts of ownership over the property, controlling it as his own and paying all taxes and other expenses thereon; that it was fully understood between the plaintiff and the defendant that no gift was intended, and the defendant understood that she was to hold the title in trust for the plaintiff, and that she would make such conveyance to him as he might desire; that the deed to the said property was physically delivered to the plaintiff and that he has had actual possession of the same since the date of its execution. It is alleged that the defendant owes the plaintiff the legal duty to transfer title to said property to him, and that she violated this duty when she failed and refused to do so; that the plaintiff has no adequate remedy at law, and in equity and good conscience he is entitled to have the title to the property decreed in him, and in addition to praying for process and rule nisi, he prays: (1) That the defendant be enjoined from selling or encumbering the property; (2) that a receiver be appointed to take charge of the property; (3) that an accounting be had between the parties as to rents; (4) that an implied resulting trust be decreed in favor of the petitioner and that title to the property be decreed in him; and (5) for general relief.
To this petition the defendant interposed a general demurrer on the ground that it set out no cause of action at law or in equity against the defendant and in favor of the plaintiff.
She also filed an answer denying the principal allegations of the petition and alleging that at the time of the purchase of the property described in the petition there was not, nor was there ever afterwards, any agreement between the plaintiff and the defendant that she would convey the property described to the plaintiff, and that the plaintiff had on no occasion asked the defendant to do so. She further alleges that at the time of the purchase of the property she and the plaintiff were living together as husband and wife and that two children were born as the issue of the marriage, both of whom have always been in the custody of the defendant; that because of certain alleged conduct on the part of the plaintiff she finally, at his request, reluctantly consented to permit the plaintiff to arrange for the defendant to file a divorce suit against him and a copy of the decree entered therein was attached to the defendant's answer marked Exhibit 'A.' She further alleges that she worked for a salary during a portion of their married life, and that all the money she made was applied to the payment for the property which the plaintiff is now claiming to be his. She alleges that she is under no obligation, legal or moral, created by law or by contract, to account to the plaintiff, or to convey to him the property he seeks to recover in this suit, and she prays that all of the prayers of the plaintiff be denied, and that it be decreed that the property is not subject to any claim asserted by the petitioner. To this answer the petitioner interposed his demurrer on the grounds which will be referred to in the opinion.
The plaintiff amended his petition by setting out the decree of the court in the divorce case dated June 10, 1947. On March 25, 1949, the defendant filed an amendment to her answer setting up new facts and a new defense in the nature of a plea of res judicata. The amendment alleges that on November 12, 1946, a suit was filed in Chatham Superior Court by this defendant against the present plaintiff wherein she sought to recover temporary and permanent alimony, a copy of this suit being attached to the answer as Exhibit 'A.' She alleges that service of this petition was made on the plaintiff as the defendant in that suit on November 15, 1940. She further alleges that divorce proceedings were filed by the defendant against the plaintiff in the same court on May 13, 1947, and a copy of that suit for divorce is attached to the answer as Exhibit 'B.' She alleges that service of that suit was acknowledged by the plaintiff on May 13, 1947. She further alleges that these two suits for alimony and divorce were consolidated by agreement of the parties and that on June 10, 1947, a judgment and decree was entered therein. She alleges that by reason of this decree all issues as to the ownership and rights in the property now sued for were determined and decided, or could have been determined and decided, and cannot now be raised as the petitioner is attempting to do in the present suit. In this amendment she prayed that the amendment be allowed and that the suit pending against her be dismissed.
To this amendment the plaintiff, on March 25, 1947, filed a motion to strike, and to this amendment and to the answer as thus amended the plaintiff also filed demurrers upon grounds which will be referred to in the opinion.
On April 8, 1949, when the case came on for hearing on the pleadings before the trial judge the following stipulation...
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