Turner v. Olympian Hills, Inc.

• Decision Date: 16 April 1937
• Docket Number: 11700.
• Citation: 191 S.E. 106,184 Ga. 340
• Parties: TURNER v. OLYMPIAN HILLS, Inc., et al.
• Court: Georgia Supreme Court

191 S.E. 106

184 Ga. 340

TURNER v. OLYMPIAN HILLS, Inc., et al.

No. 11700.

Supreme Court of Georgia

April 16, 1937

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Petition by J. W. Turner against Olympian Hills, Incorporated, and others. To review a judgment sustaining general demurrers to the petition, plaintiff brings error.

Affirmed.

Syllabus by the Court.

Under the facts of this case, no trust, express or implied, was created; and the plaintiff was not entitled to a decree declaring him to have such an interest in the realty in question.

Mitchell & Mitchell, of Atlanta, for plaintiff in error.

Jones Powers & Williams, of Atlanta, for defendants in error.

BECK Presiding Justice.

J. W Turner brought his petition against H. H. Turner, L. L Jones, and Olympian Hills, Inc., and alleged that H. H Turner and L. L. Jones were partners in building a house on a lot in Olympian Hills. E. R. Gallimore had agreed to purchase this lot from H. H. Turner and L. L. Jones, and Turner and Jones were to furnish Gallimore $2,500 with which a house was to be constructed on plans furnished by L. L. Jones and H. H. Turner. In pursuance of this agreement Gallimore started the building, and H. H. Turner obtained $2,500 from the plaintiff, who was his brother, which he gave to Gallimore with the knowledge, consent, and approval of L. L. Jones. Gallimore used the money of the plaintiff to finish the house according to contract, and Gallimore gave H. H. Turner and L. L. Jones a security deed on the lot, to secure the payment of the $2,500. Gallimore was unable to pay the $2,500, and H. H. Turner and L. L. Jones sued him on the notes, and obtained a judgment with a special lien on the property. Gallimore went into bankruptcy; and in the federal courts an equity suit was filed, seeking to enjoin the foreclosure in the state court. Clarence Calhoun, receiver for Gallimore in the state court, H. H. Turner, L. L. Jones, and all of Gallimore's creditors, were parties to the case. The restraining order was refused, and the property was levied on, sold by the sheriff, and bid in by Olympian Hills, Inc. H. H. Turner and L. L. Jones are the incorporators and sole stockholders of Olympian Hills, Inc. Because of repeated assurances of H. H. Turner and L. L. Jones that they would settle with him when the Gallimore case was concluded and give him a return of or security for his money, the plaintiff did not bring any action. He brought an action only when defendants repudiated all liability to him. When H. H. Turner obtained the $2,500 which he gave to Gallmore to build the house, he promised the plaintiff that he would give him a note for the amount so obtained, and would give him a security deed as a first lien on the property. He failed to do this, and two months later gave to the plaintiff, J. W. Turner, a receipt reading as follows: 'Received of Jno. W. Turner twenty-five hundred fifty dollars. He is interested pro rata in E. R. Gallimore deal to that extent with L. L. Jones and H. H. Turner.' At the time the receipt was given, H. H. Turner informed J. W. Turner that the 'Gallimore deal' referred to the improvement of the lot in Olympian Hills, above referred to. There had been a previous deal between the defendants and Gallimore, but the plaintiff did not know of it, and was not informed of it, and claims no interest in it. He asks that his interest in the lot above referred to be set up by decree of court.

The foregoing statement of the facts is taken from the brief of counsel for the plaintiff, which counsel for the defendants admit is a fair statement, but suggest that the following paragraphs of the petition should be added:

(6) 'At the time this money was obtained, H. H. Turner informed J. W. Turner that he and L. L. Jones would give J. W. Turner a security deed to the land described in paragraph two (2) of this petition' (the lot in Olympian Hills on which it was proposed to build the house).

(7) 'On the strength of this assurance J. W. Turner gave his money to H. H. Turner, and H. H. Turner, with the knowledge consent, and approval of L. L. Jones, turned over said money to E. R. Gallmore in accordance with the terms of the contract between E. R....