Wallace v. Mize

• Decision Date: 12 May 1922
• Docket Number: 2803.
• Citation: 112 S.E. 724,153 Ga. 374
• Parties: WALLACE ET AL. v. MIZE.
• Court: Georgia Supreme Court

112 S.E. 724

153 Ga. 374

WALLACE ET AL. v. MIZE.

No. 2803.

Supreme Court of Georgia

May 12, 1922

Syllabus by the Court.

Actions to impose and enforce implied or constructive trusts must generally be brought in seven years from the time such actions accrue.

The general rule that the statute of limitations does not run in favor of a trustee against the cestui que trust applies only to express trusts, and does not embrace implied or constructive trusts. These latter are within the operation of the statute of limitations, and suits to enforce them may become barred.

In this state, when the trustee in an implied trust recognizes the trust and treats it as subsisting within seven years next preceding the institution of an action to enforce it, such suit is not barred by the statute of limitations.

When the husband buys land with money which is the separate estate of his wife, and takes the title in his own name, in the absence of any evidence that the wife had given or loaned her money to him, the law raises an implied trust in favor of the wife, and makes the husband her trustee holding the property in trust for her sole use and benefit.

When timely requested in writing so to do, the court erred in refusing to charge the jury that "all admissions which have been shown to have been made by F. P. Mize must be scanned with care by the jury."

(a) While the request is not couched in the exact language of the law, this request is within its sense and spirit.

(b) The fact that a request assumes as true a fact which is undisputed furnishes no ground for the refusal thereof, when it contains a principle of law peculiarly applicable and pertinent under the facts of the case.

Declarations of one in possession of land in favor of his own title are admissible to prove adverse possession.

(a) Where a claimant relies upon statements and admissions of his father to show that the latter had purchased land with money of his wife, taking title thereto in his own name, whereby an implied trust arose in favor of the wife, and that in consequence of such a trust the claimant was entitled to an undivided half interest in such land on the death of his mother, he and his father being her sole heirs at law declarations made by the father, while in possession of the land, that the same was not bought with money of his wife but with his own funds, are admissible to show his adverse possession.

When witnesses are placed under the rule of sequestration, and thereafter a witness remains in court and hears the testimony of other witnesses, this does not disqualify such witness and render him incompetent to testify, but subjects him to attachment and punishment for contempt of court in disobeying its order.

Where the rule of the sequestration of witnesses was invoked by the plaintiffs, whose counsel stated that they had no witnesses except their clients, and where the witnesses for the opposite party were then called, sworn, and examined out of the hearing of the other witnesses, the court erred in refusing to permit the plaintiffs to swear a witness whose knowledge of vital and important facts bearing upon their side of the case had come to the attention of their counsel after the rule above had been invoked, and before the evidence had closed, on the ground that this witness had heard the testimony of the witnesses for the claimant, and because of the above statement of counsel for the plaintiffs at the time the rule was invoked, counsel stating in their place that they had made the above statement in good faith that knowledge of what this witness would swear to had been acquired by them during the progress of the trial, and that the witness had not been in court since their discovery of what he knew; there being nothing to show that counsel acted in bad faith in the matter.

A new trial being granted, this court expresses no opinion on the evidence in the case.

Error from Superior Court, Banks County; Blanton Fortson, Judge.

Suit by R. G. Wallace, administrator, and others against L. B. Mize. Judgment for defendant, and plaintiffs bring error. Reversed.

R. G Wallace, as administrator of F. P. Mize, applied to the court of ordinary of Banks county for an order to sell "a tract or parcel of land situated, lying, and being in Bushville district, said county (208th district G. M.), consisting of 108 3/5 acres, more or less, being a part of the place whereon F. P. Mize lived at the time of his death, and being that tract conveyed to F. P. Mize by deed dated November 30, 1883, from W. S. Mize, recorded in Deed Book C, page 651, in the office of the clerk of the superior court" of said county, to which reference is made for its full description. L. B. Mize thereupon filed his claim to said land, setting up that the same was not the property of the estate of said F. P. Mize, but that he was the owner of a one-half undivided interest in said land. This claim was returned to the superior court of Banks county for trial. Thereupon R. G. Wallace, as such administrator, Mrs. F. P. Mize, Mary Mize, Willie Mize, Ruth Mize, Lonnie Mize, and Paul Mize, the latter by their next friend Mrs. F. P. Mize, filed their equitable petition in Banks superior court, in which they alleged: That L. B. Mize was a resident of Clarke county, Ga.; that R. G. Wallace, the administrator of F. P. Mize, was a resident of Banks county; that Wallace was the duly appointed administrator of F. P. Mize, having been appointed such by the ordinary of Banks county; that the estate of F. P. Mize, deceased, consists of 208 acres, more or less, of land in Banks county, Ga., in Bushville district, known as the F. P. Mize home place; that said administrator had applied for leave to sell the lands of said estate; that before an order was granted for that purpose by the ordinary of said county said L. B. Mize, on February 27, 1919, filed a claim to an undivided one-half interest in 108 3/5 acres of said land; that the claim had been transmitted to the superior court of Banks county for trial; that on account of the location of the said land it would be impracticable and detrimental to the interest of said estate to sell the land not included in the claim without selling that included in said claim; that the debts of the estate amounted to the sum of $2,500, as shown by a schedule attached to the petition; that the interest on said indebtedness amounts annually to $200 or other large sum; that the buildings on said estate are annually depreciating in value; that the wife and children of said F. P. Mize have had one year's support set apart to them; that they had consumed the same in the year for which it was set apart, and they are now in need of support, which they cannot obtain on account of the debts due by the estate; that it is necessary to sell said lands, in order that the debts may be paid, and for the purpose of distribution among the heirs; that L. B. Mize is an heir at law of F. P. Mize, and as such would be entitled to a distributive share in his estate; that on account of the present prevailing high prices of real estate, and the present high prices of cotton, it would be to the best interest of said estate that said lands be sold as early as practicable. Petitioners prayed that the court pass an order authorizing said administrator to sell all the 208 acres of land claimed by the estate, including the one-half undivided interest in the 108 3/5 acres claimed by L. B. Mize; that the administrator be required by said order to deposit in the Banks county bank or such other bank as the court may select the amount of money arising from the sale of the undivided one-half interest in said 108 3/5 acres, subject to the final decision of the court on the claim filed by L. B. Mize. They prayed for such other relief as was meet and proper.

Hon. Andrew J. Cobb, judge of the Western judicial circuit, passed a consent order, authorizing and directing the administrator to sell said land, his deeds to vest as good title in the purchaser as if no claim had been filed; that one-half of the proceeds of the 108 3/5 acres stand in the place of the land, and be kept subject to the future orders of the court, to be disposed of by the final judgment in the claim case.

L. B. Mize answered the petition, admitting the substantial allegations thereof. He alleged that the 108 3/5 acres of land belonged to F. P. Mize and himself jointly, and the other 100 acres belonged to F. P. Mize; that he was an heir at law of F. P. Mize, and as such entitled to receive his share of the estate; that the 108 3/5 acres of land was purchased with the money which his mother inherited from her father's estate; that while the title to said 108 3/5 acres was taken in the name of F. P. Mize the land did, as a matter of fact belong to the wife of F. P. Mize, deceased, who was his mother; and that on the death of his mother she left surviving her husband and himself, her only child, as her sole heirs at law, and as such he was entitled to one-half of said land.

This consolidated case came on for trial at the March term, 1921, at Banks superior court. On the trial it was admitted that the 108 3/5 acres brought, when sold, $5,220.40, and that L. B. Mize would be entitled to one-half thereof if his claim to a half interest in said land was sustained.

Mrs. M. T. Anthony, for claimant, testified:

That she knew F. P. Mize during his life; "knew his first wife, who was an Erskin; was there when the first Mrs. Mize was sick. She had been very low, but had gotten up and was able to knock around in the house. F. P. Mize at that time was living there on that place where he finally died. It was between 25 and 28 years ago. I was there when there was a conversation between the first Mrs. Mize and her husband, F P. Mize, about...