1. The evidence authorized the verdict.

( a) The general grounds of the motion for a new trial, not being argued, will be treated as abandoned.

2. An implied trust results from the fact that one person's money has been invested in land and the conveyance taken in the name of another.

( a) To set up and establish such implied trust, it is necessary only to allege and prove that one person furnished all or a portion of the purchase-money for the land, and that the deed was taken in the name of the person to whom the money was furnished.

( b) If, from all the facts and circumstances, an implied trust is otherwise established, it is not destroyed by an express verbal agreement which may have constituted a part of the transaction.

3. There was no error in giving in charge to the jury the excerpt from the charge, quoted in division three of this opinion.

4. The charge, "Great inadequacy of consideration, joined with great disparity of mental ability in contracting a bargain, may justify a court of equity in setting aside a sale or other contract," was properly given.

No. 15041. JANUARY 6, 1945.

Anderson Evans filed a suit in equity against John R. Hudson and his wife, Mrs. Lucile B. Hudson. The petition, as amended, made substantially the following allegations: The petitioner's father, Thomas Evans, died in 1921, seized of described real estate. The petitioner was appointed temporary administrator of his father's estate in 1921, and permanent administrator in 1925. He made cash advances to the estate in various sums, aggregating more than $800, which claims had been duly allowed and approved by the ordinary. The reasonable market-value of the real estate was $800. The real estate adjoined a farm owned by Mrs. Lucile B. Hudson. The petitioner "is an ignorant and virtually illiterate negro;" and consulted for several months prior to August 1, 1933, with John R. Hudson "as to the status of said estate, . . asking his advice as to how petitioner could legally buy the land of said deceased; and the said John R. Hudson repeatedly assured petitioner that `they' were `not going to let me lose my land.'" The land was duly advertised to be sold at public outcry on the 1st Tuesday in August, 1933. Shortly before the date of sale, "John R. Hudson approached petitioner and proposed that the way to handle the matter was for the said John R. Hudson to act as petitioner's agent and bid in the property for petitioner, and that petitioner could still use his claim against the estate in payment of the purchase-price, and that he, the said John R. Hudson, would then convey the property to petitioner." The petitioner, believing in the good faith of Hudson, allowed him to act as agent and bid in the property, believing that he would convey the property as agreed. Hudson bid in the property, using the indebtedness of the petitioner against the estate as the purchase-money, and paid in no money. Hudson then directed the petitioner to make the deed to his wife, Mrs. Lucile B. Hudson, because she owned the adjoining property, he having authority to act as her agent, agreeing that the deed would be executed by her to the petitioner, as had previously been agreed. Thereupon the deed was executed to her. "Said John R. Hudson, acting for himself and the said Mrs. Lucile B. Hudson, acted in fraud against petitioner in the manner hereinbefore set out. . . Said defendants never intended in good faith to act for petitioner and convey all of said property to him, but, on the contrary, it was their purpose and intention to fraudulently secure the title to said property in the manner hereinbefore set out, and to defraud petitioner out of his birthright." The defendants have been in possession of the property since August, 1933, and its reasonable rental value is $100 per year. The defendants refuse to execute a deed to the petitioner. The prayers were : that title to the property be decreed to be in the petitioner ; and that a judgment be rendered against the defendants for the rental value, less the amount, if any, found to be due by the petitioner to the defendants.

The defendants answered, admitting the material allegations as to the manner in which the land was sold, but contending that the circumstances were as follows: "In answering 12, defendants say that Anderson Evans came to John Hudson and wanted help in getting the title to the piece of land in question straightened out. Evans had a claim against the estate of his father in the sum of about $800, which was more than the land was worth, about four hundred dollars at the time of the sale. But Evans wished to keep the land in the Evans family. Evans owed past-due taxes in the sum of $15.61 for 1932 taxes, and the land was about to be levied on for taxes. He owed $25 to the ordinary for costs of administration of the estate and $13.60 for advertising and $40 attorney's fee to A. F. Jenkins. He had no money. While the land was in reality worth only about $400 at the time in question, he did not wish for it to go to an outsider, and was willing to bid the full amount of his debt of $800. Mrs. Hudson owned some land adjoining the tract and wanted some more. John Hudson acted for her, and he made an agreement with Anderson Evans that he would pay the expenses of administration, as above, set out, and the tax fi. fa. described above, and Mr. Jenkins's attorney's fee of $40, if Anderson would let Mrs. Hudson keep forty acres of the land more or less on the back of the tract including the branch. At the sale Hudson bid it in for $800 in Mrs. Hudson's name. Anderson Evans made out a deed to Mrs. Hudson to all of the land right after the administrator's sale, and she was to make him a deed to his part when he called for it. Mrs. Hudson paid the taxes on the whole tract until January, 1941, when she made a deed to Anderson Evans to sixty acres of it as per agreement."

Upon the trial of the case, the evidence was in sharp conflict as to the issue made in the pleadings. The jury returned a verdict in favor of the plaintiff. The defendants filed a motion for new trial, which was overruled. The exception is to this judgment.

WYATT, Justice.

1. The evidence authorized the verdict; and there being no argument upon the three general grounds of the motion for new trial, these will be treated as abandoned by counsel for the plaintiffs in error. See Manchester v. State, 171 Ga. 121 ( 155 S.E. 11).

2. The plaintiffs in error argue grounds 4, 5, and 7 of their amended motion together, and they will be so dealt with here. These grounds all complain of excerpts from the charge of the trial judge, which are as follows: 4. "I charge you, gentlemen, that in this case the defendants admit that they did not pay the whole of the purchase-price, but that they merely paid certain expenses of administration, taxes, attorney's fees, amounting to approximately $95, and that in taking title to the land they recognized the fact that the plaintiff had a beneficial interest in the land and that a trust in relation thereto arose in his favor." 5. "I also charge you that the defendants having admitted taking title to the 102-acre tract referred to in the petition, that is, taking title in the defendant, Mrs. Lucile B. Hudson, without paying the purchase-price therefor, an implied trust in relation thereto arose in favor of the plaintiff." 7. "Likewise, if one should purchase land with the money of another and take the title in his own name, with the understanding and agreement that he would hold the property for the use and benefit of the one paying for the same, an implied trust would arise in favor of the latter."

The plaintiffs in error state in their brief: "Although the statements of law in the charge were abstractly correct, they were not adjusted, to the evidence in this case, and should not have been given." We therefore approach the questions raised from the premise that the quoted excerpts from the charge do, in the abstract, state correct principles of law — the question being, were they applicable to the facts in the instant case. The burden of the argument made by the plaintiffs in error is that the material facts stated in the petition, all of which were supported by evidence, do not as a matter of law create an implied or resulting trust, but amount to an effort to engraft an express trust on a deed by parol evidence.

The Code, § 108-106, provides: "Trusts are implied — 1. Whenever the legal title is in one person, but the beneficial interest, either from the payment of the purchase-money or other circumstances, is either wholly or partially in another. 2. Where, from any fraud, one person obtains the title to property which rightly belongs to another. 3. Where from the nature of the transaction it is manifest that it was the intention of the parties that the person taking the legal title should have no beneficial interest. 4. Where a trust is expressly created, but no uses are declared, or are ineffectually declared, or extend only to a part of the estate, or fail from any cause, a resulting trust is implied for the benefit of the grantor, or testator, or his heirs."

In Berry v. Brunson, 166 Ga. 523, 529 ( 143 S.E. 761), this court, quoting and citing the above Code section, said: "Such implied trust may arise from the payment of a portion of the purchase-money. Hall v. Edwards, 140 Ga. 765, 767 [79 S.E. 852] ; 26 R. C. L. 1224, § 70. A trust of this kind does not arise from or depend upon any agreement between the parties. It results from the fact that one person's money has been invested in land, and the conveyance taken in the name of another. It is a mere creature of equity. 26 R. C. L. 1214, § 57. Such a trust never arises out of a contract or agreement between the parties, but arises by implication of law from their acts and conduct apart from any contract. 39 Cyc. 104, B. It is only necessary to allege and prove that one person furnished the purchase-money for the land in controversy, and that the deed was taken in the name of the person to whom the money was so furnished. No presumption of a gift or loan arises. 26 R. C. L. 1231, § 77."

In Hemphill v. Hemphill, 176 Ga. 585, 590 ( 168 S.E. 878), after quoting with approval the language above quoted from Berry v. Brunson, supra, this court said : "The fact that the plaintiff alleged that a certain agreement was had between her and the defendant did not render the petition fatally defective as seeking to enforce an express trust by parol. If from all the facts and circumstances an implied trust is otherwise established, it is not destroyed by the express verbal agreement which may have constituted a part of the transaction." See also Hall v. Edwards, 140 Ga. 765 (supra) ; Jackson v. Jackson, 150 Ga. 544 ( 104 S.E. 236).

This court, in Guffin v. Kelly, 191 Ga. 880, 886 ( 14 S.E.2d 50), said: "In all cases where a trust is sought to be implied, the court may hear parol evidence of the nature of the transaction, or the circumstances, or the conduct of the parties, either to imply or rebut a trust. [Code] § 108-108. Accordingly, the fact that the plaintiff alleged that a certain oral agreement was made between him and Mrs. Guffin and Mrs. Kay, at the time of such conveyance to the latter, did not render the petition defective as seeking to enforce an express trust by parol. If from all the facts and circumstances an implied trust is otherwise established, it is not destroyed by the express verbal agreement which may have constituted a part of the transaction. The express agreement may be shown, not as fixing the interest to be owned by the parties, but as rebutting the inference of a gift by the plaintiff."

In the instant case, the plaintiff in the court below contended that his indebtedness against the estate of his father was used by the defendants as the purchase-price of the property in question. This was admitted by the defendants to be true. Money belonging to Evans was, therefore, used by the defendants with which to pay the purchase-price of the land. Evans denied any agreement to sell the defendants forty acres of the land, but contended that the defendants made the advance of court costs and attorney's fees so that the land might be sold in order that title could be placed in such shape that Evans would be in a position to negotiate with the defendants for a sale of a portion of the land. He contended that no agreement was ever reached as to these negotiations. The defendants contended that Evans did sell them forty acres of the land, and that a deed to the remainder of the land had been executed and delivered to the plaintiff. Evans denied that he made any such sale or that he accepted the deed. The trial judge in his charge fully submitted to the jury the contentions of the defendants. The jury found against their contentions.

The facts of this case, as contended by Evans, were such as to create an implied or resulting trust in his favor. The excerpts from the charge of the trial judge were properly given to the jury.

3. Ground six complains of the following excerpt from the charge: "Where land is purchased by one with money of another, under an agreement and understanding that the title is to be taken in the name of the latter, and the one procures a deed to the land but causes it to be made to himself, an implied trust will arise in favor of the person who furnished the money to pay for the property." The only reference or argument contained in the brief of the plaintiffs in error addressed to this ground reads as follows : "The charge complained of in ground six ignores the duty of the plaintiff at least to make a bona fide effort to agree on the land Hudson was to keep." We deem it sufficient to say that the excerpt is not subject to this criticism.

4. The plaintiffs in error, in their brief, refer to ground nine. They evidently mean ground eight, since this is the last numbered ground of the amendment to the motion for new trial. The excerpt there complained of reads as follows: "Great inadequacy of consideration, joined with great disparity of mental ability in contracting a bargain, may justify a court of equity in setting aside a sale or other contract." The criticism of this excerpt is that there was no evidence of either inadequacy of consideration or disparity of mental ability. The evidence did show that Evans furnished the entire consideration for the purchase-price of the land, that Evans was a negro, and that he was advised by John R. Hudson as to the manner in which the sale should be handled. The principle of law contained in this excerpt was properly given to the jury.

From what has been said, it follows that there was no error in denying the motion for new trial.

Judgment affirmed. All the Justices concur, except Jenkins, P. J., disqualified.