Opinion
19403.
ARGUED JUNE 12, 1956.
DECIDED JULY 9, 1956.
Equitable petition; trusts. Before Judge Horne. Crisp Superior Court. April 19, 1956.
Gower McCormick, for plaintiff in error.
Graydon D. Reddick, Wright Reddick, contra.
The judgment sustaining the general demurrer was not error.
ARGUED JUNE 12, 1956 — DECIDED JULY 9, 1956.
Mrs. Nena L. Westbrook, in her individual capacity and as testamentary trustee for Ann Katherine Westbrook, filed her suit against J. T. Westbrook, Jr., in which she made in substance the following allegations: J. T. Westbrook, Sr., the husband of the petitioner and the father of the defendant in error, died testate on March 12, 1937. Under the terms of his will, which has been probated in solemn form, the plaintiff was made testamentary trustee for Ann Katherine Westbrook, an incompetent daughter of the deceased. The said will constituted the petitioner the sole executrix and gave to her complete power to handle and manage the estate. During the month of September, 1945, a division of her property into seven parts was worked out by the petitioner and the defendant, in whom she had complete confidence and upon whom she relied for advice. The will provided that the property should be divided into seven parts, the incompetent child to receive two-sevenths and the other members of the family to receive one-seventh each. A drawing was had in which certain property was drawn as the property of the incompetent child. Thereafter, it was decided that, on account of the incapacity of Ann Katherine Westbrook, it would be necessary to have the property partitioned. The petitioner requested the defendant to advise the appraisers of the division previously made by the drawing and to ask them to make the same division of the property. The defendant promised to do so, but did not so do, but, on the contrary, prevailed upon the commissioners to give to him the property previously drawn by the incompetent child and give to the said child other property. The petitioner immediately advised the defendant that this division was not satisfactory and that she proposed to file objections. The defendant then agreed that he would hold the property in his name until it could be developed, and then he would convey the property to Ann Katherine Westbrook. Thereafter, the defendant conveyed a two-thirds interest in the property to two other children, they conveying to him one-third interests in other property. Money was borrowed upon this property and other property as security. The petitioner in her individual capacity borrowed money on her property in the amount of $20,000, to be used in the development of the property, $11,000 of which was not used for that purpose. The petitioner has repeatedly demanded that the defendant convey to Ann Katherine Westbrook a one-third interest in the property awarded to him and a one-third interest in the property he received in exchange for a two-thirds interest in said property, which he has failed and refused to do.
The prayers of the petition were that the court decree that the interest of J. T. Westbrook, Jr., in all of the property involved in this transaction be decreed to be the property of Ann Katherine Westbrook, subject to outstanding liens on the property; and that the defendant be restrained and enjoined from further encumbering or conveying said property. The petitioner in her individual capacity prayed for a lien upon the property in the sum of $3,000, this being one-third of the amount she alleges she paid out of her own funds to improve the property in question. The trial court sustained a general demurrer to the petition and dismissed it. The exception here is to that judgment.
The law of this State with reference to the creation of trusts provides as follows: "All express trusts shall be created or declared in writing." Code § 108-105. "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." Code § 108-106. "Whenever the circumstances are such that the person taking the legal estate, either from fraud or otherwise, cannot enjoy the beneficial interest without violating some established principle of equity, the court will declare him a trustee for the person beneficially entitled, if such person shall not have waived his right by subsequent ratification or long acquiescence." § 108-107.
It is clear that, if the plaintiff in error is entitled to recover, it must be upon the theory of an implied trust or trust ex maleficio. This court in Mays v. Perry, 196 Ga. 729 ( 27 S.E.2d 698), said: "A complainant who seeks relief based on the doctrine of trusts ex maleficio must allege more than the breach of a verbal promise. There must be an unequivocal allegation of positive fraud accompanying the promise, by means of which the acquisition of the legal title was consummated. General allegations as to an entire course of fraudulent conduct are not sufficient, in the absence of a specific averment that the promise was made to be broken." (Headnote 1.) "There is no averment that the original promise of Perry was made with the intention of breaking it. Inasmuch as the doctrine of trusts ex maleficio with respect to land can never be applied when there is nothing more than a broken verbal promise (otherwise the statute of frauds would be virtually abrogated), and since in order for such a promise to be the basis of a constructive trust it must have been made with the intention of being broken and for the purpose of thereby obtaining title, a person who seeks relief on account thereof must unequivocally allege the particular facts constituting the fraud relied on to vitiate the transaction. (P. 735.) See also, Jones v. Robinson, 172 Ga. 746 ( 158 S.E. 752).
In the instant case, there is no allegation to the effect that any promise was made with the present intention of being broken. The petition is fatally defective for other reasons. It appears that the division of this property was made in a partition proceeding, and it does not appear that the division of the property was not fair and equitable. The plaintiff in error received property in this division which she retains. No attack is made upon the judgment of the court making the division. The petition further fails to show that the plaintiff in error has sustained any injury. As appears from the authorities above cited, the law with reference to the creation of implied trusts must be strictly complied with. The petition in the instant case fails to allege the facts necessary to create an implied trust.
It follows from what has been said above, the judgment sustaining the general demurrer to the petition was not error.
Judgment affirmed. All the Justices concur.