Davis v. Davis , 237 Ga. 448 ( 1976 )

237 Ga. 448 (1976) 228 S.E.2d 838

DAVIS
v.
DAVIS.

31310.

Supreme Court of Georgia.

Submitted July 2, 1976. Decided September 7, 1976.

Zachary & Segraves, W. E. Zachary, Sr., for appellant.

Hoyt L. Bradford, for appellee.

JORDAN, Justice.

Flostine Davis sued Alton Davis for divorce. Alton counterclaimed asking for a decree that certain property, possession of which or title was in Flostine, be impressed with a trust for his benefit. At the conclusion of the evidence, the trial court directed a verdict against Alton on the trust issue. This is the only question raised on the appeal.

After a careful review of the record, we have concluded that the trial court did not err in directing a verdict for the wife-appellee on this issue. The appellant testified that he conveyed his one-half interest in their house to appellee because he feared a lawsuit and that appellee orally agreed to re-convey same after the threat was over. Even if such a promise were proven, appellant could not recover the property absent a showing that the promise, when made, was fraudulent. Bennett v. Bennett, 212 Ga. 128 (91 SE2d 29) (1956) and Westbrook v. Westbrook, 212 Ga. 472 (93 SE2d 683) (1956). Appellant's counterclaim did not allege fraud and there was no evidence that the promise was fraudulently made. As to certain money furnished by appellant to purchase a bond, there was no evidence that the parties made any agreement, express or otherwise, as to who would have ownership thereof.

The evidence failed to show a trust in favor of the appellant as to either the realty or the bond.

Judgment affirmed. All the Justice concur.