Allen v. Allen , 198 Ga. 269 ( 1944 )

1. A judge of the superior court, in the exercise of his discretion, may vacate an order previously passed during the same term consolidating two separate cases pending therein.

(a) No abuse of discretion in so doing appears in the instant case.

(b) The order of consolidation, which was entered on motion of the plaintiff, affecting two cases, one numbered on the trial court calendar as 136,606, and the other as 136,607, and containing a recital that "said consolidated cases shall proceed under No. 136,606," did not amount to a voluntary dismissal by the plaintiff of case No. 136, 607, said motion to consolidate not asking that the two cases proceed under the one or the other.

2. The instant suit being one by a wife against her husband to compel him as trustee to account to her for certain sums of money belonging to her as a part of her separate estate, among them being a sum received by her from an insurance policy on the life of her father, she being the beneficiary named therein, the court's refusal to submit to the jury the question whether the defendant had paid certain insurance premiums on said policy was not error, where the record shows neither an averment nor evidence that the husband paid the same under any contractual agreement with the wife.

3. Whenever a husband, with or without the wife's consent, acquires from her money which is her separate property, he must be deemed to hold it in trust for her benefit, in the absence of any evidence that she intended to make a gift of it to him.

(a) The transaction does not make the husband a naked depositary, although when the wife delivered such money to him there was no agreement or understanding that it would be invested and reinvested by him for her benefit.

(b) Nor did the absence of any such agreement or understanding make the husband liable to the wife merely as for money had and received, so as to cause no interest to accrue until a demand by her for payment and a refusal by him.

4. Where a husband acquires from his wife money belonging to her separate estate under circumstances such as the law would imply that he received the money in trust for her, and, when called on to account, fails to do so, and it appears that, immediately upon receiving the money, he converted it to his own use, and mingled it with his own funds, he also is liable to her for interest from the date of such conversion.

5. In an equity case, where the jury is instructed to render a special verdict consisting of answers to certain questions submitted to them, the judge should submit only such issues as will enable him to render a decree from the verdict, the pleadings, the admissions of the parties, and the undisputed facts.

(a) The general rule, that a decree must follow the verdict on which it is founded, does not require that no decree be rendered unless the verdict contains all the facts upon which it is founded.

(b) If, in an equity suit, the jury's special finding includes one to the effect that the plaintiff is entitled to recover from the defendant a named sum, and their finding is silent as to interest, it is the duty of the judge in framing a decree to award interest from such date as the law would fix, in view of what is contained in the pleadings, the admissions made by the parties, and the undisputed evidence.

6. Objections to the submission by the judge of questions to the jury for the rendition of a special verdict under the Code, § 37-1104, can not be made for the first time in a motion for new trial.

7. The gravamen of the complainant's case being that her husband received from her funds belonging to her separate estate under circumstances such as the law would imply that he held them in trust for her, and the evidence being sufficient to support such a contention, the verdict and decree in her favor will not be set aside by reason of the fact that she alleged but did not prove that her husband received the funds under an agreement and understanding that he was to invest and reinvest them for her benefit.

8. In a case of this character, the statute of limitations does not begin to run until there has been an account rendered, accompanied by an offer to settle, a refusal upon demand to settle, a notice of adverse claim, an express repudiation of the fiduciary relation, such a change of circumstances of the parties as would be reasonably calculated to put the wife on notice that the relation is no longer recognized, or something to indicate to a reasonably prudent person that the relation has ceased, in which case the law would presume a demand after the lapse of a reasonable time.

9. Where the testimony of a party to the suit is conflicting, the conflicts therein will be resolved against him.

10. The verdict was supported by the evidence, and the trial judge did not err in refusing to grant a new trial to the plaintiff in error. Nor was the decree erroneous for any of the reasons assigned.

No. 14943. SEPTEMBER 11, 1944. This is a branch of the case reported under the same name in196 Ga. 736, a reference to which will indicate the nature of the suit, and the averments of the petition. Both defendants filed answers denying in the main the allegations of the plaintiff. A motion for nonsuit was sustained as to the defendant Peoples Loan Incorporated, to which ruling apparently no exception was taken. The judge directed the jury to return a special verdict, consisting of answers to certain questions, fifteen in number, the questions and answers being as follows:

1. Did cash money in the sum of $3917.78, referred to in the amendment to paragraphs 6 and 9 of the plaintiff's petition, belong to the plaintiff, Mrs. E. W. Allen, as a part of her separate estate at the time the defendant, E. W. Allen, received the same? Answer: Yes.

2. If you answered question 1 to the effect that said money was the property of the plaintiff, Mrs. E. W. Allen, did Mrs. E. W. Allen deliver said money to the defendant, E. W. Allen, upon the understanding between them that said money was to be invested and reinvested by E. W. Allen for the benefit of the said Mrs. E. W. Allen? Answer: No.

3. Upon what date was said sum of $3917.78 received by the defendant, E. W. Allen? Answer: November 24, 1917.

4. If you answered question 2 in the affirmative, that is, that said money was delivered with the understanding recited, was there any understanding between said parties that said money, or investments therefrom, would be returned to the plaintiff, Mrs. E. W. Allen, at any specified time? Answer: No.

5. State whether or not the plaintiff made a demand upon the defendant for said sum of $3917.78, as alleged in the plaintiff's petition. Answer: Yes.

6-A. If you answered that such a demand was made, was such demand refused by the defendant, E. W. Allen? Answer: Yes, November 28, 1941.

6. Did the two parcels of real estate on Indiana Avenue, described in paragraph 6 of the plaintiff's petition, belong to the plaintiff, Mrs. E. W. Allen, as part of her separate estate on June 11, 1920? Answer: No.

7. For what amount of money were said properties sold on June 11, 1920 — that is to say, what was the gross purchase-price of both lots? Answer: $5000.

8. State the amount of real-estate commissions, if any, paid out of the gross purchase-price on the sale of the above-mentioned lots. Answer: $500.

9. Were the proceeds of the sale of said two lots (that is, the total purchase-price less commissions) received by the defendant, E. W. Allen, upon the understanding between him and the plaintiff, Mrs. E. W. Allen, that said money was to be invested and reinvested by E. W. Allen for the benefit of the said Mrs. E. W. Allen? Answer: No.

10. If you answer question 9 in the affirmative (that is, that said money was delivered with the understanding above recited), was there any understanding between said parties that said money, or investments therefrom, would be returned to the plaintiff, Mrs. E. W. Allen, at any specified time? Answer: No.

11. Was a demand made in behalf of the plaintiff, Mrs. E. W. Allen, upon the defendant, E. W. Allen, as alleged in paragraph 13 of the plaintiff's petition as amended? Answer: Yes, November 18, 1941.

12. If you answer that such a demand was made, was such demand refused by the defendant, E. W. Allen? Answer: Yes.

13. Can said original monies of $3917.78, and the proceeds of the sale of the aforesaid two lots of land be traced into present monies or properties in the possession of, or standing in the name of, the defendant, E. W. Allen? Answer: No.

14. Were said sums of $3917.78 and said proceeds of sale, or either of them, used to purchase capital stock in Verday Mills and Corley Mills Inc.? Answer: No.

15. Do you find in favor of the defendant on the pleas of the bar of statute of limitations, filed in this case by the defendant, E. W. Allen? Answer: No.

After the jury had answered these questions and their answers had been read in open court, the judge stated: "I am unable to tell whether the jury understood or did not understand the purport of their answers to questions 1 and 2, and I am going to frame one additional question and ask the jury to retire and answer that question, in order that I may determine what the jury has in mind, and will do so without any statement or request from either counsel or without making any statement to the jury as to what interpretation the court might give on the verdict which it has already rendered. If you gentlemen will wait just a minute, I will write this question out and ask you to retire and answer it. I am adding it on this paper as question 4 (a). Gentlemen, the question I have is: ``Do you find that plaintiff Mrs. E. W. Allen is entitled to recover from defendant Allen said sum of $3917.78 in this case?' I think that, if the jury will retire and answer that question, I can better interpret this answer." The jury retired, and returned the following answer to the last question, "Yes." Thereupon the judge entered the following decree: "The jury having rendered a verdict finding in favor of the plaintiff and against the defendant in the sum of $3917.78, it is ordered, considered, and adjudged, that the plaintiff have and recover of the defendant said sum of $3917.78 principal, together with interest thereon from November 24, 1917, to this day in the sum of $7184.86, with future interest on said principal sum at the rate of seven per cent. (7%) per annum. This 4th day of February, 1944."

The defendant filed written motions to amend the decree, to modify the decree, and for a new trial (later amended), all of which were denied; and he excepted. The nature and grounds of these several motions are stated in the accompanying opinion, which also refers to so much of the evidence as is pertinent to the issues here presented. The defendant also excepted to an order vacating one theretofore entered consolidating the present case with a pending divorce suit filed by Mrs. Allen against him, and to the refusal of the court to dismiss the present action after its consolidation with the other case. 1. This case presents a number of questions. The first assignment of error is based on an order of the trial court, dated December 9, 1943, vacating one granted on November 23, 1943, during the same term, consolidating the instant case with a libel for divorce which was also pending in the same court between the same parties, Mrs. Allen being the plaintiff. The second assignment is founded on the refusal of the court thereafter to dismiss the case. Both may be considered together, since they involve the same contention, which is that the first order, granted on the motion of Mrs. Allen, consolidating the cases, was in effect a dismissal of the present suit, the order of consolidation directing that said cases proceed under "No. 136, 607," which was the divorce action. Simpson v. Brock,114 Ga. 294 (40 S.E. 266), holds that, where a plaintiff by his counsel voluntarily dismisses his petition, whether for a good or bad reason, the court has no authority, over objection of the defendant, to reinstate the action. To the same effect, see Petty v. Piedmont FertilizerCo., 140 Ga. 149 (90 S.E. 966); Colclough v. Bank ofPenfield, 160 Ga. 303 (127 S.E. 752). The second order above referred to was granted over the objection of the plaintiff in error, and if the order of consolidation amounted to a dismissal of the petition, both assignments of error are well taken, otherwise not. The plaintiff in error relies on certain language found in Spinks v. LaGange Banking c. Co., 160 Ga. 705 (129 S.E. 31), to wit, that, "The consolidation of the prior action at law amounted practically to a withdrawal of the legal action, and was tantamount to an order dismissing it." The facts there were that the bank, having sued at law a corporation as maker and Spinks as endorser on certain promissory notes, thereafter brought an equitable petition to impound the property of Spinks and subject it to the payment of the bank's debt. The petition in the latter case, referring specifically to the first suit, and saying that the equitable petition was brought in aid of it, sought the same relief as that asked for in the first suit, and more. The bank offered an amendment to its equity suit, praying that the two be consolidated. This was objected to on various grounds, which are set forth in the opinion in that case, and upon the overruling by the trial court of the several grounds of objection, Spinks excepted. The only question thereby presented for decision was, did the trial court err in allowing the amendment? Whether or not the consolidation of the two cases was tantamount to a dismissal of the suit at law was not in issue before the court. In the Spinks case, the equity suit, brought in aid of the first one, did practically take its place and the situation there presented being in the mind of the writer of the opinion, it was perhaps not inappropriate to say, in that case, that the amendment which prayed for a consolidation amounted practically to a withdrawal of the legal action, and was tantamount to dismissing it; but the record in that case did not call for a ruling as to whether such would be the effect, and the language quoted is not binding as an authority on the proposition. The two cases referred to in the order in the instant case involved altogether different issues. The order consolidating them directs that "said cases," etc., and that "said consolidated cases shall be set for trial," etc., following the written motion of Mrs. Allen that the two cases "be tried together," and that a day be set "for the trial of said consolidated cases." She did not in her motion ask that the two cases proceed under the one case or the other, although the order consolidating them read that they proceed under the number assigned to the divorce case. The order of consolidation on her motion was not a voluntary dismissal of the instant case. There is no error in either of these two assignments.

2. Before the case proceeded to trial and before the introduction of any evidence, counsel for Allen submitted to the court in writing a number of questions, asking that the jury be directed to answer them specifically. Among the questions so submitted by his counsel were the following: "1. Did E. W. Allen pay the insurance premiums on the life-insurance policy of Basil M. Woolley from 1905 to the date of the death of Basil M. Woolley in 1917? 2. If your answer to the preceding question is ``Yes,' what was the amount of these premiums?" The court refused to submit these two questions to the jury, and error is assigned on this refusal. The plaintiff in error raises the same issue in a motion to modify the decree, and in one of the special grounds of his motion for new trial. In each of the several methods of attack, the fundamental question is, whether or not under this record Allen is entitled to receive credit from Mrs. Allen for the insurance premiums paid by him on a policy of insurance issued on the life of Dr. Basil M. Woolley, Allen's wife, the daughter of Dr. Woolley, being named as the beneficiary therein. The evidence shows without dispute that Allen paid $2355.36 from the year 1905 until the death of the insured in 1917. Allen testified as to a quarrel between his wife and her father, at which time the $5000 insurance policy was mentioned, and an agreement was entered into between Allen and her father with reference thereto, Allen's testimony being as follows: "I will endeavor to state what the conversation was. The best that I can say was that I was to take over the policy and pay the premiums and carry it as an investment for my own benefit. I remember Mrs. Allen was not present. At the time that that was said about the premiums on the $5000 policy, that I was to keep up the premiums on the policy, I told Mrs. Allen that I was paying the premiums on the policy. I told her I was carrying it for my own investment. I can't recollect the exact words that Dr. Woolley said about my carrying it. I had the policy at that time; it was delivered to me in Woods White's office. Mrs. Allen never had the policy in her possession. I do not recollect how much the premiums were that I paid on the policy. I paid every one of them down to 1917. I owned at that time the property on St. Paul Avenue. The policy I was to take over was the $5000 policy. No one else paid a dime on the premiums on that $5000 policy, that I remember, from 1905 until Dr. Woolley died." His contention, as developed by his testimony (the pleadings as to this being silent), was not that the policy belonged to Mrs. Allen and that he, Allen, claimed a lien on it because of having paid the premiums, but that the policy became his and that he was carrying the same as an investment for his own benefit. As further contradicting his present position, that, in an accounting with her, she should be charged with the premiums paid by him, there was in evidence a suit filed by Allen against the executrix of Dr. Woolley to recover these premiums from his estate, said suit containing an allegation that the sum so paid out by him was expended for and in behalf of Dr. Woolley. Allen's testimony shows that he knew that his wife was the beneficiary named in the policy, and that she executed no assignment of it to him. There can not be gathered from this record any evidence that there had been an agreement between Mrs. Allen and her husband that there should be an immediate change of ownership, and therefore nothing to treat it as an equitable assignment. Jones v. Glover, 93 Ga. 484 (20 S.E. 50); Smith v. Folsom, 190 Ga. 460, 471 (9 S.E.2d 824); Blount v. Metropolitan Life Ins. Co., 192 Ga. 325 (15 S.E.2d 413). There is no evidence that Mrs. Allen ever agreed to repay him the amount expended by him for premiums. The parties were husband and wife. The jury found that this insurance money was hers. If the policy in which she was the beneficiary was kept alive for her benefit by his paying the premiums, he, when made to account to her for the proceeds which he converted to his own use, is not entitled to a credit for the premiums paid by him under the circumstances here shown. He insists that he is entitled to a credit for these premiums upon application of the maxim contained in the Code, § 37-104: "He who would have equity must do equity," etc. If, in paying these premiums, he did not do so under some agreement with the insured by which the latter himself promised to repay him, as might be inferred by the suit which he filed against Dr. Woolley's executor, then realizing that to keep the policy in force was for the benefit and protection of his wife, perhaps he was moved thereto by the force of another truth as ancient as the maxim which he relies on, to wit: "But if any provide not for his own, and specially for those of his own house, he hath denied the faith, and is worse than an infidel." Paul's Reports, vol. 10, 1 Timothy, 5, 8. Also compare the Code, § 108-116. Mrs. Allen was under no duty in law or in equity to account to him for the premiums paid by him.

3. The plaintiff in error excepted to the decree in so far as it provided that Mrs. Allen should have a judgment, not only for $3917.78, but also for interest thereon at 7 per cent. per annum from November 24, 1917. The jury had found that said sum was a part of the separate estate of Mrs. Allen at the time he received the same, to wit, on November 24, 1917. The undisputed testimony showed that it was not turned over to him as a loan or as a gift. It also showed without dispute that as soon as he received it he appropriated it to his own use, claiming it as his own, and mingling it with his own funds so that it could not be traced. There is nothing in the evidence to indicate that Mrs. Allen knew that he had converted the money, nor that she made any demand upon him to account until the day the present suit was filed. Allen testified that she never laid any claim to the money until her attorney presented her demand to him immediately before the institution of this action. The jury made no finding as to interest. Counsel for Allen take the position that, since she alleged that she turned this money over to him to be invested and reinvested by him for her benefit, and since the jury found that it was not delivered to him upon any such understanding, the effect of the jury's finding, that this money belonged to her as a part of her separate estate at the time Allen received it, was not to make him an implied trustee for her, but that the transaction simply created him a naked depositary, and therefore he was not liable for interest thereon until after a demand on him and his refusal to repay. "Whenever a husband acquires the separate property of his wife, with or without her consent, he must be deemed to hold it in trust for her benefit, in the absence of any direct evidence that she intended to make a gift of it to him." Barber v. Barber, 125 Ga. 226 (53 S.E. 1017). It was said in Young v. Wilson, 183 Ga. 59 (187 S.E. 44), a case where the husband did not as here hold legal title to the wife's property, that the statement just quoted was obiter — and it was — and that it was based on the theory that the husband managed and controlled the property for his wife.

Every statement in an opinion is not to be condemned as unsound merely because it may be classed as obiter. There is many a dictum in the books which can not be successfully assailed. Furthermore, it must be remembered that the opinion, though presented by a single judge, nevertheless is the opinion of the court, and those who concur therein stand sponsor for its contents. Although not compelling as a precedent, yet if it emanates from an able and careful judge, the chances are that the expression is a sound one. If one were seeking light as to what the law is, he would be bold indeed not to give weight to an expression from a legal luminary, although it may be on a point not necessary to a decision of the case in which such expression occurred. The meteors that form in mere space, and, proceeding out of order, so to speak, dash athwart the skies, are sometimes more illuminating than the fixed stars. It is difficult for a judge in expanding a legal proposition to prevent some dicta from occasionally slipping into the discussion. This is frequently but the overflow of a mind surcharged with knowledge on the general subject before the court. The quotation above given from Barber v. Barber is found in the headnote. It is not developed in the opinion. To "acquire" sometimes means to become the owner of property; to make property one's own. 1 Words and Phrases (Perm. ed. 640). When given this rendering, we apprehend that no well-founded criticism could be lodged against the soundness of the pronouncement, even though it be obiter. See the following cases, which accord with the statement in the Barber case:Maddox v. Oxford, 70 Ga. 179; Sasser v. Sasser,73 Ga. 275; Brooks v. Fowler, 82 Ga. 329 (9 S.E. 1089).

In Garner v. Lankford, 147 Ga. 235 (93 S.E. 411), this court ruled that where a wife turned over money of her own to her husband, who by investment in other property mingled it with his individual estate, the legal title was vested in him under an implied trust. That case went off on demurrer, it being alleged in substance as follows: The plaintiff's intestate, the mother of the first set of children, was Nancy Veal Minor. In 1859 her father, William Veal, gave and delivered to her $600, stating at the time of the gift that "it was to remain her property, and not to become the property of her husband, said George Minor, by possession or otherwise." Upon receiving the money, Nancy Veal Minor "in turn handed the same to her said husband, said George Minor." After thus acquiring its possession, George Minor "invested the said money in land or other profitable investment or investments, and . . said money went into his estate . . as a trust fund of the said Nancy Veal Minor, . . and not as the money of said George Minor, . . and was so recognized and treated." There, it "was so recognized and treated" as the wife's money. Here, the husband never recognized his wife's ownership. That is the only difference in the two cases. Rucker v. Maddox,114 Ga. 899 (41 S.E. 68), is unlike the instant case only in that there the wife entrusted a fund in the hands of her husband to him under an agreement that he was to use and improve the same for her benefit, and in the instant case there was no such agreement. We are of the opinion that, without any agreement to that effect, the law will imply one and treat the husband as trustee for his wife. In principle the case falls within the rule announced in Wallace v. Mize, 153 Ga. 374 (112 S.E. 724), as follows: "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 the use and benefit of his wife." For the pronouncement just made the court cited, among other authorities, Barber v.Barber, supra. The statement there enunciated has been often applied, and while none of the cases heretofore decided by this court may have dealt with the identical state of facts here presented, a number of them will be found referred to in the opinions heretofore mentioned, which recognize and give effect to the principle controlling this issue. Counsel for the plaintiff in error argue earnestly that the answers by the jury to the questions submitted entirely eliminated any theory of trust. We can not agree. Under the finding of the jury an implied trust was created, and the question as to interest can not be determined on the assumption that Allen was liable simply for money had and received, or as a naked depositary.

4. Having received his wife's money under circumstances such that the law will imply that he took it in trust for her, when called on to account for it, from what date does interest commence to run? The money was placed in his hands on November 24, 1917. He at once mingled it with his own funds. He denied that it ever was her money. The jury found otherwise. He converted it to his own use on the day he received it. From that moment there was a breach of the trust. The Code, § 57-107, is as follows: "In the absence of an agreement to the contrary, interest shall not run until default; hence where money can be recovered because of mistake or other like reasons, no interest shall run until after demand and refusal to refund." This section first appeared in the Code of 1895. It was codified from a decision of this court, to wit, Georgia Railroad Banking Co. v. Smith, 83 Ga. 626, 634 (10 S.E. 235). A Code section is to be constructed in the light of the source from which it came, unless the language of the section demands a different construction. Calhoun v. Little, 106 Ga. 336 (3) (32 S.E. 86, 43 L.R.A. 630, 71 Am. St. R. 254), and other authorities to like effect cited in Alropa Corporation v. Pomerance,190 Ga. 1, 8 (8 S.E.2d 62). Section 57-107 is applicable only to instances where money, paid by mistake or other like reasons, can be recovered, and has no reference to situations where a trustee has converted the property of another to his own use. GeorgiaRailroad Banking Co. v. Smith, supra, was a case where the State, as owner of the Western Atlantic Railroad, sued the other road to recover overcharges paid by the former to the latter on iron consigned to another railroad. The overcharges resulted from a mutual mistake, and all that the court did was to lay down a general rule touching money paid by mistake.

In Anderson v. State, 2 Ga. 370, it was ruled that he who has fraudulently received, or wrongfully detains the money of another, is chargeable with interest thereon from the time he received it. In the opinion by Judge Nisbet appears the following: "There is no question about the liability of executors, administrators, guardians, and other trustees, to pay interest upon trust funds in their hands, even before the cestuique trust is legally entitled to demand them; much more therefore such funds shall bear interest when improperly withheld from those entitled to receive them." While the quoted words were obiter, since the court was there dealing with the default of an agent, any expression in a judicial opinion from the pen of Judge Nisbet is bound to command respect from any one familiar with the reputation for learning and accuracy borne by that great jurist.

Certain legatees of Story brought suit against the executor of Davidson, he being Story's executor, for an accounting. After holding that the plaintiffs could recover an item representing attorney's fees, which Davidson had paid to himself, the question arose as to the date from which interest should be charged. The court, in Davidson v. Story, 106 Ga. 799, 802 (32 S.E. 867), said: "Further complaint is made, in regard to this item, that no interest should have been charged until a demand was made upon the executor of Davidson. It was contended that this case fell within the rule laid down in section 2881 of the Civil Code, which declares that, ``Where money can be recovered because of a mistake, or other like reasons, no interest runs until after demand and refusal to refund.' There is nothing in this case which would make the retention by Davidson of the attorneys' fees such a mistake as to make the section applicable, nor does any other reason appear which would relieve from the penalty of paying interest one who, without authority of law, diverts from the proper channel funds in his hands. That this diversion was made in good faith and with honest intentions, is not sufficient to bring the case within the rule laid down in the section quoted. If Davidson's estate is liable for the retention of this amount, it is certainly liable for interest from the time it was improperly retained, and the decision of the auditor to this effect was not erroneous."

Newman v. Thompson, 134 Ga. 137 (67 S.E. 662), was a case where an administratrix brought suit against a son of her intestate to recover a sum of money obtained by the son from his mother. It was alleged that the mother did not have sufficient mental capacity at the time to make a contract, and that the money was obtained from her by undue influence exerted over her by the son. This court held that if the plaintiff was entitled to prevail, she was entitled to receive interest from the date of the agreement between the intestate and her son, transferring to the latter the money sued for.

Bank of Waynesboro v. Walters, 135 Ga. 643 (70 S.E. 244), was a suit by a married woman against a creditor of her husband to recover money she paid to settle a debt of her husband in consideration that a criminal prosecution against him would be stopped. It was ruled that, even though the wife did not demand the repayment of the money with which she discharged her husband's debt until some time after its payment, she could recover interest thereon from the time of its payment; also, that it was immaterial that when she demanded repayment she demanded a larger sum than she in fact paid, as she was entitled to recover without making a demand.

In each of the three cases last referred to, the defendants were in reality trustees. It was a breach of their trust when they appropriated the money to their own use, just as here Allen commenced to treat his wife's money as his own as soon as he received it, and so mingled it with his own funds that it could not be traced. The foregoing decisions are in line with what has been ruled by the courts of other states, to wit, that the trustee is chargeable with the legal rate of interest from the date of the breach of the trust. State ex rel. Raskin v. Shachat, 120 Conn. 337 (180 A. 502); Stuck v. Schumm,290 Mass. 159 (194 N.E. 895); Hershey v. Stone, 10 N. J. Misc. 967 (162 A. 89); Gullick v. Slaten, 169 S.C. 244 (168 S.E. 697). Mrs. Allen was entitled to interest from November 24, 1914, that being the date her husband breached his trust by converting the money to his own use.

5. It is urged upon us that, regardless of what the law generally may be as to the recovery of interest from the date of the breach of the trust, it was error here to include it in the decree because the jury did not so find. Here is the jury's finding: "4(a) Do you find that plaintiff, Mrs. E. W. Allen, is entitled to recover from defendant Allen said sum of $3917.78 in this case? Answer, Yes." The other questions and answers, which became a part of the jury's verdict, make it clear that "said" sum of $3917.78 was the proceeds of certain insurance policies on her father's estate payable to her, which Allen received on November 24, 1917, and for which she made a demand on him, as alleged in her petition, and the demand was refused on November 28, 1941. Counsel for the plaintiff in error cite Miller v. Georgia Railroad Bank,120 Ga. 17 (3) (47 S.E. 525), for the proposition that it is necessary, in order to recover interest, that there should be an allegation in the petition seeking such recovery, as well as a prayer. The case does not so hold. They cite Williams Realty Loan Co. v. Simmons, 188 Ga. 184 (3 S.E.2d 580), for the proposition that, where a general verdict is rendered, it is in the discretion of the jury to allow or not allow interest. That was an auditor's case, and dealt with unliquidated damages. The ruling was merely that the judge and auditor, in the absence of any prayer for interest, did not err in refusing to allow its recovery, irrespective of whether or not, if prayed, it would have been recoverable on such an unliquidated demand eo nomine or as part of the damages recovered, in the discretion of the auditor, as in case of a jury. Counsel cite a passage fromMcCrary v. Gano, 115 Ga. 295 (41 S.E. 580), quoted approvingly in Davis v. Wright, 194 Ga. 1, 7 (21 S.E.2d 88), as follows: "After the dispersal of the jury, the judge has no power either to add to or take from their finding. It is true that under the direction given to the jury they were instructed to find interest in favor of the plaintiff; but their verdict did not embrace such a finding, and the court was without authority to make any finding for them. Suppose, in a given case, the verdict of a jury should be, in all respects, palpably contrary to the charge of the court. It certainly would not be contended that the judge would have the power to correct the error of the jury in disregarding the instructions of the court by discarding the verdict returned and substituting another in its place." In the Gano case, the verdict was a general one. In the Wright case, there were no special findings in response to questions submitted by the judge to the jury. In each of these cases, the judge himself directed that the verdict be amended. Here, the judge did nothing of the kind. He merely undertook to apply the law to the verdict that was returned. Therein lies a distinction between those two cases and the present one. Here, the judge submitted to the jury no question as to interest; they made no finding as to interest. When the judge included interest in the decree, he did not go counter to any finding of the jury. He merely applied the law to their finding that the wife was entitled to recover from the husband "said sum of $3917.78."

The Code, after making a provision for special verdicts in equity cases, declares that, "Upon the special verdict of facts, so rendered, the presiding judge shall make a written judgment and decree in said cause under the law applicable to the same." § 37-1104. This section was codified from the act approved February 23, 1876 (Ga. L. 1876, p. 105), and follows the exact language of the statute. Section 37-1201, which declares that, "A decree is the judgment of the judge in equitable proceedings upon the facts ascertained," is of earlier origin. Its parentage may be traced to section 4122 of the Code of 1863, which states that, "A decree in chancery is the judgment of the chancellor upon the facts ascertained." The section last noticed does not read, "upon the facts ascertained by the jury." Nor does the one first referred to mean that the decree can go no further than to deal with nothing in the case except such facts as are contained in the special verdict. In Peppers v. Peppers, 194 Ga. 10 (20 S.E.2d 409), reference is made in division 3 of the opinion to certain contentions of one of the parties, and the following language was used: "The jury made no finding as to that; hence that was not one of the ``facts ascertained,' and without it there could as to this issue be no decree for the complainant." There was no insistence in that case that there was anything in the pleadings, in the admissions made by the parties, or in the undisputed facts, to have justified the court in framing a decree assuming that such contentions had been established — which case has been re-examined while the present case was under consideration — nor would the record have borne out such an insistence had it been presented. It would have been better had a statement to that effect been made in the report of that case or in the opinion, so as to show that that case did not involve the principle ruled in Mayor c. of Macon v. Harris, 75 Ga. 761, and reaffirmed in Law v. Coleman, 173 Ga. 68 (159 S.E. 679). Such an interpretation of the section as contended for by counsel would require the judge to submit to the jury questions as to which there is no issue under the evidence or the pleadings. One of the advantages in submitting special questions in a complicated equity case is to focus the attention of the jury only on the relevant, material issues as they have been developed during the trial. In Bryan v. Osborne, 61 Ga. 51, it was ruled that under the act of 1876 (Ga. L. 1876, p. 105), authorizing special verdicts in equity cases, only such issues need be submitted to the jury as, together with the facts admitted in the pleadings, will bring out the truth of the case fully enough to sustain the decree. In Jefferson v. Hamilton,69 Ga. 401, it was held that, under the act, only such questions need be put to the jury as will enable them fully to find the facts in issue and not admitted by the pleadings. InColeman v. Slade, 75 Ga. 61, it was decided that in such a case it is the duty of the judge to submit such issues as will enable him to make a decree from the verdict and from the pleadings and the undisputed facts. In Mayor c. of Macon v.Harris, supra, it was determined that in this kind of a case it is necessary for the judge to propound only such broad questions and put such main issues as will enable him, from the answers thereto, the admitted or uncontested facts, the pleadings, and the principles of law and equity, to decree on the entire case and adjudicate the rights of the parties. In Law v. Coleman, supra, it was held that, "A decree must follow the verdict upon which it is founded; but this principle does not require that no decree be rendered unless the verdict contains all the facts upon which it is founded. A decree should follow the finding of facts found by a special verdict; but while the judge in rendering the decree can not go contrary to the facts found in a special verdict, he may examine the pleadings, admissions made by the parties, and all undisputed facts. In the absence of anything to the contrary, it will be presumed that the judge was authorized by the pleadings, admissions made by the parties, or by the undisputed evidence, to enter the decree which he rendered." That the jury made no special finding as to interest, did not, under the facts of this record, prevent the judge from including it in his decree.

It was further argued that the decree as to interest is erroneous, in that for a part of the time, under a suit filed by Mrs. Allen against him, Allen was enjoined from changing the status or from disposing of any of his property belonging to him, except a reasonable amount necessary for his living expenses. Counsel's argument as to this is, that Mrs. Allen, having secured a court order of the above nature, ought not to have him penalized by paying interest to her, since by her own action she has tied his hands. The order and the petition on which it is based would not, we apprehend, be construed by any court to prevent him from paying Mrs. Allen, since the very object of her suit was to compel payment to her out of his assets. There is no merit in this contention.

An additional insistence of counsel for the plaintiff in error is, that to allow interest would be to decree contrary to the finding of the jury, and this can not be done. Law v.Coleman, supra. The finding in answer to question 4(a) that the plaintiff was entitled to recover from the defendant $3917.78, with the other specific finding that he received this sum from the plaintiff on a day named, was not a finding against interest. In Mayor c. of Savannah v. Champion, 54 Ga. 541, there was a general verdict as follows: "We the jury find for the appellant $1759.29, as of 12th December, 1870, payable in currency." The trial court permitted a judgment to be entered with interest from the date of the verdict. This court in that case ruled as follows: "In our judgment, the legal effect of the verdict was to find for the plaintiff the sum of $1759.29, as being due him on the 12th of December, 1870, and that being so, the court should have ordered the judgment to have been entered on the verdict for the sum of $1759.29, with interest thereon from the 12th of December, 1870, that being the time the jury, by their verdict, found the principal sum to have been due the plaintiff." It will be noted that the verdict there, as here, was silent as to any finding for interest; but the jury having found for the appellant a certain sum "as of" a certain date, this court said that interest from such date should be included in the judgment.

In the motion to modify the decree, several other distinct reasons were urged why it was erroneous to include interest thereon. All of these have been considered, and the points so made must be ruled adversely to the contentions of the plaintiff in error, on application of the principles of law already referred to. This is true also as to the assignment of error on the decree itself. It was not erroneous to include in the decree the provision as to interest.

6. The final assignment of error is to the overruling of the motion for new trial as amended. Complaint is made therein that the judge erred in submitting to the jury question 4(a); that the answers to the original questions demanded a decree in favor of the defendant; and that the last question contained an intimation by the court and tended to influence the jury. Objections to the submission by the judge of questions to the jury for the rendition of a special verdict under the Code, § 37-1104, can not be made for the first time in a motion for new trial. City ofAtlanta v. Carroll, 194 Ga. 172 (21 S.E.2d 86). If the inclusion in a question of an intimation by the judge as to what had or had not been proved would form an exception to the rule just stated, it is enough to say that the question here complained of did not contain any such intimation.

7. It is urged in the motion for new trial that the plaintiff did not prove her case as laid, in that she alleged that her money was delivered to Allen with the understanding that he was to invest and reinvest it for her, whereas the jury found that she did not deliver it to him with such an understanding. The gravamen of Mrs. Allen's case is that her husband received from her funds belonging to her separate estate under circumstances such as the law would imply that he held the funds in trust for her, and that he converted them to his use. While understanding as to investment and reinvestment of the funds for her benefit would perhaps be an appropriate allegation, if true, still under the authorities heretofore cited he is liable to her with or without such understanding. In the recent case of Sewell v.Anderson, 197 Ga. 623 (30 S.E.2d 102), it was sought to set aside a deed because of the lack of mental capacity in the grantor, the allegation being that he was insane at the time, and that his property was then in the hands of a guardian after an adjudication of lunacy. On the trial the proof was that the guardian once appointed for him had been discharged, and the management of his property restored to him at the time of the execution of the deed. On this showing a nonsuit was granted. This court held that this was improper, because the plaintiff was entitled to have the deed set aside upon a showing that the maker was insane at the time, and that it was not a prerequisite to recovery also to show, as alleged, that the grantor's property was at the time in the hands of a guardian appointed as aforesaid. That ruling bears an analogy to the question here raised. If a husband receives from his wife money belonging to her, which she turns over to him, not as a loan or a gift, but to hold as trustee for her, he violates his trust when he appropriates the same to his own use; and in a suit by her to bring him to account, he will be made to account to her therefor on proof of those facts alone, even though it be alleged and not proved that in addition to what has just been stated, he took the money under an agreement to invest and reinvest the same for her benefit.

8. It is urged in the motion for new trial that the evidence demanded a finding in favor of the plea of the statute of limitations. When the case was here on demurrer (Allen v.Allen, 196 Ga. 736, 27 S.E.2d 679), it was ruled on that subject that under the allegations of the petition the suit was not barred. Applying the ruling there made to the facts adduced on the hearing, the contention is without merit.

9. It also was urged that the verdict can not stand because the uncontradicted evidence showed that Allen purchased stock in certain mills. This contention is not borne out by the record. The defendant's own testimony as to this was contradictory, and he was the only witness who testified on the subject. CompareStepp v. Stepp, 195 Ga. 595 (25 S.E.2d 6).

10. The verdict was supported by the evidence, and the judge did not err in refusing a new trial. Nor was the decree erroneous for any of the reasons assigned.

Judgment affirmed. All the Justices concur.