Stonecypher v. Coleman , 161 Ga. 403 ( 1925 )

Hines, J.

(After stating the foregoing facts.)

When the father of the plaintiffs died intestate, holding possession of lands under bonds for title with a part of the purchase-money paid, he had a beneficial interest or equitable estate therein. Dunson v. Lewis, 156 Ga. 692 (119 S. E. 846); Gholston v. Northeastern Banking Co., 158 Ga. 291 (123 S. E. 111, 35 A. L. R. 23). Upon his death this interest or estate descended to his heirs at law. Civil Code (1910), § 3929; Eagan v. Conway, 115 Ga. 130 (41 S. E. 493). This interest or estate of the intestate in these lands was of much greater value than the balance of the purchase-money due by him thereon. When the defendant acquired from the vendors of the intestate the legal title to these lands, under the agreement and arrangement entered into between her and the administrator, by which she was to pay the balance oi purchase-money due thereon by the intestate, and was to receive the rents and profits from these lands until she was repaid the money advanced by her in paying the balance due on the purchase-money thereof, when she was to convey the lands to the heirs at law of the intestate, if no debts were then due by the estate, there was impressed upon the lands in her hands an implied trust in favor of the children of the intestate, including the plaintiffs. This implied trust arose, not by reason of the said agreement between her and said administrator, but by reason of the fact that, when she acquired the legal title to these lands under such arrangement, there was a beneficial interest or estate in the heirs of the intestate therein. She thus became an implied trustee of the heirs. She héld the title to such lands as such trustee. An implied trust arises “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.” Civil Code (1910), § 3739; Jenkins v. Lane, 154 Ga. 454, 477 (115 S. E. 126). In the circumstances the defendant held the legal title to these lands, but the beneficial interest at the inception of this arrangement was partially in the heirs of the intestate, including the plaintiffs. When she received a sufficient amount from the rents of these lands to repay her for the money expended by her in paying the balance of the purchase-money' due thereon by her intestate, with interest, the whole beneficial interest in these lands vested in the heirs, and said lands then became their property, and she could as such trustee be compelled in equity to convey these lands to the heirs at law of the intestate.

If she improperly sold one tract and wrongfully encumbered the other tract, and permitted the latter land to be sold under such encumbrance, after she had been repaid from the rents the money advanced by her to discharge the balance of the purchase-money due on these lands by the intestate, she would be liable under this implied trust to her coheirs at law for the value of their interests in these lands and in any excess of profits received by her after the payment of the money so advanced by her, with interest thereon. If she should pay off the encumbrance upon the unsold tract, then the plaintiffs would be entitled to a decree declaring that she held four sevenths interests in said tract in trust for them. If she should permit said tract to be sold under the incumbrance placed thereon by her, then she would be liable to account to the plaintiffs for their four sevenths undivided interests therein; and would likewise be liable to account to them for their four sevenths interests in any excess of profits received by her over and above the money, with interest, used by her in paying off the balance of the purchase-money due on these lands by the intestate. Treated as a petition to enforce an implied trust and to recover damages for its breach by the implied trustee, the petition set forth a cause of action; and the trial judge did not err in overruling the demurrer on the ground that it set forth no cause of action.

It is insisted that the plaintiffs5 cause of action is barred by the statute of limitations. Their petition was filed on October 4, 1924. The plaintiffs allege in their petition that up to September 18, 1915, the defendant had received from rents and profits from these lands a sum of money more than sufficient to discharge the amount of money paid by her upon the balance of purchase-money due by the intestate on these lands, with interest. On that date she sold one of these tracts of land for $1,881.56. It clearly appears that on said date the defendant had received from rents, and from this sale, a much larger sum of money than was necessary to repay her the amount she advanced in discharging the purchase-money due by the intestate on these lands, with interest. When the defendant was thus fully reimbursed for her money so expended, the title to the unsold tract of land vested in her and her children as tenants in common. The petition alleges that when plaintiffs became of age the defendant excluded them from the possession of this land. Actions to enforce implied or constructive trusts must generally be brought in seven years from the time such actions accrue. Wallace v. Mize, 153 Ga. 374 (112 S. E. 724). If the exclusion of the plaintiffs from this land by the defendant occurred more than seven years prior to the bringing of this proceeding, then their cause of action would be barred. But the date of their exclusion from the premises and the ages of the plaintiffs are not given. Besides, the statute of limitations does not run against minors; and they have the same time, after coming of age, to bring an action as is prescribed in the Code for other persons. Civil Code (1910), § 4374. In the fifteenth paragraph of their petition the plaintiffs allege that they were minors at the time of the death of their father; and they then undertake to state their respective ages, by leaving blank spaces after their names for this purpose, but these blanks are left unfilled. So it does not affirmatively appear that the plaintiffs became of age more than seven years before the institution of this suit, or, if of age, that their expulsion from these lands had occurred more than seven years prior to the bringing of this suit. Being in a court of equity, it may be urged that if the plaintiffs be within an exception to the statute, it was incumbent upon them to state it in their petition. Worthy v. Johnson, 8 Ga. 236 (12) (52 Am. D. 399). But this court has held that the defense that a cause of action is barred can not be asserted by demurrer in an equitable proceeding, if it does not affirmatively appear upon the face of the petition that the cause of action is barred by the statute. Powell v. McKinney, 151 Ga. 803 (3) (108 S. E. 231); Collins v. Henry, 155 Ga. 886 (2) (118 S. E. 729). It not affirmatively appearing that the plaintiffs’ cause was barred by the statute of limitations, the court did not err in overruling the demurrer to the petition seeking to set up such defense.

It is next insisted that the cause of action set out in the petition was one in favor of the administrator of the intestate, which can not be enforced by the plaintiffs. This contention is based upon the theory that the plaintiffs are undertaking to enforce a contract between the defendant and the administrator, by which the defendant acquired the title to these lands by paying the balance of the purchase-money due thereon by the intestate, and by which she agreed to convey these lands to the heirs' at law of the intestate when she was repaid the amount she advanced, from the rents and profits thereof. If the plaintiffs were endeavoring to have this contract specifically performed by the defendant, or were suing her for damages'growing out of its breach, this question would be for decision by this court; but we have undertaken to show in the first division of this opinion that the plaintiffs are not seeking to have this contract specifically performed by the defendant, nor are they seeking to recover damages from her for its breach. On the contrary, they are undertaking to enforce an implied trust against the defendant and to recover for its breach by her. The plaintiffs allege tbe existence of this agreement by way of inducement, and to show that by reason of the existence of this contract in part, and the other facts stated, this land was impressed by an implied trust in their favor, which they are seeking to set up and enforce against the defendant and to recover from her for its breach. Clearly the action upon this implied trust was not one in favor of the administrator, but one in favor of the heirs at law of the intestate. Furthermore, as the contract between the administrator and the defendant was made for the benefit of the heirs of the-intestate, it might well be held that they could sue on it in their own names. Sheppard v. Bridges, 137 Ga. 615, 631 (74 S. E. 345); Carruth v. Ætna Life Insurance Co., 157 Ga. 608 (122 S. E. 226). But, as we have stated, this question is not for decision in this case, and we do not pass upon it.

The court did not err in allowing the amendment to the petition, over the objections of the defendant. The facts stated in this amendment were germane to the original petition, and the amendment was properly allowed.

It follows from what is set out above that the court did not err in overruling the motion of the defendant to dismiss the petition as amended. Judgment affirmed.

All the Justices concur.