Wood v. Rice , 143 Ga. 647 ( 1915 )

Lumpkin, J.

(After stating the foregoing facts.)

While the contracts, agreements, or understandings alleged in the petition are not expressly stated to have been in parol, yet, from the petition as a whole, it may fairly be inferred that such was the fact; and counsel on both sides argued the case on that basis, each treating the alleged contract or agreement relied on as having been in parol. We will so consider it.

At the time when the alleged agreement was made, the property had been sold by the sheriff, and bought by Harris. Neither J. N. Wood Sr., nor his wife, nor his children had any right or interest whatsoever in or in regard to it. Harris, the absolute owner, was willing to let Wood repurchase the property for $4,500, but Wood was unable to raise the money. According to the allegations, Eice agreed to buy the property from Harris and pay his own money for it; and it was “the understanding and agreement” that the $4,500 paid by Eice was to be repaid to him with interest at seven per cent., and that when this amount had been paid he “was to have no further interest in said property, and was to relinquish all claim thereto in favor of your petitioners.” It was alleged that there was no restriction in the agreement preventing Eice from selling any part of the property, but that it was “understood and agreed” that he was to account to the plaintiffs for all money so received. Most of the property was realty. In so far as it was sought to create an express trust in favor of the plaintiffs, this could not be done by parol, especially not as to the realty. Civil Code (1910), § 3733. In the petition the expression is several times used that J. N. Wood Sr. did certain things, “acting for petitioners.” Sometimes it is stated that he acted “for the benefit of petitioners.” Considering the allegations together, it is apparent that it was not intended to allege that he was acting as agent for his wife and minor children, and that they were the real principals in the contract or agreement, but merely that he desired to obtain the property from Harris for the benefit of his family. Neither Wood nor any of the plaintiffs paid anything to Rice or to Harris. The cases in which an owner has conveyed land to another, and in which a resulting trust in favor of the grantor or his heirs has been declared on account of fraud or other circumstances, are not applicable. Neither are those decisions applicable in which a parol contract in regard to land has been held to be taken out of the statute of frauds by reason of full performance by the party seeking to enforce it, such as full payment of the purchase-money; or by such part performance on his part as would make it a fraud not to enforce the contract against the other party. Neither Wood nor Harris is here seeking to enforce any contract made by Eice with either of them. Stripped of all surplusage, the proceeding is an effort by Mrs. Wood and her children to enforce an alleged parol agreement made by Wood with Eice, by which the latter was to buy certain land and personalty, and, after receiving back the amount advanced by him, with interest, to deliver what remained, or its proceeds, if sol'd, to the plaintiffs. There was not even a direct allegation that Eice was to sell the property and reimburse himself, but it was alleged that “there was no restriction in the agreement aforesaid that said Eice should not sell off any part of the property so deeded to him by the said Harris, but it was understood and agreed that he should account to petitioners for all moneys so received by him in the sale of said property.” At another place it was alleged that after Eice should have received the $4,500 paid by him, he was to have no further interest in the property. It was also alleged that the petitioners were allowed to remain upon the land without payment of rent for four years. How their being permitted to use the land free of rent gave them any rights in regard to it, which they did not possess before, is not apparent. Eice was not in the position of an agent or attorney who buys property for his principal and takes the title in his own name. There are various rather indefinite allegations as to agreements, understandings, and impressions of parties, and as to Wood and his wife and children acquiescing in sales of parts of the property by Eice upon the understanding that they were being made for the purpose of paying back to him the $4,500 which he had paid to Harris for the land, with interest thereon, and upon the understanding and agreement that any surplus received by him would be paid to the plaintiffs. The allegations do not show an implied trust under the Civil Code (1910), § 3739. The plaintiffs’ right to recover, if any, must at last rest upon the alleged parol agreement above indicated, together with the fact that Eice sold the property for more than the amount which he had paid for it, with interest. They seek to recover a judgment for the excess. There is nothing to take the agreement, as to the land, out of the statute of frauds.

An examination of the facts of the cases relied on by counsel for the plaintiffs, in which a person having title to land, or an interest in it, made a parol agreement witli another in regard to it, which was so far performed as to take it out of the statute of frauds, or in which an agent or attorney bought land for his principal and took title in his own name, or in which the circumstances were such as to create an implied trust, will show that they are quite different from those here involved. Thus in Freeman v. Cooper, 14 Ga. 238, the owner of land which was to be sold under levy made an agreement with another person that the latter should purchase the propei^, and that the former should have the right to buy it back by paying to the purchaser what he gave for it, with interest. It was alleged that the person with whom the agreement was made bought the land at the sheriff’s sale, and that the owner whose land was thus sold and bought in had repaid the amount of the purchase-money. In Gilmore v. Johnston, 14 Ga. 683, it was alleged, that an owner of propertj, consisting of lands and negroes, received the greater portion of it by virtue of his marriage; that executions were about to be levied upon it; that, knowing it would be sold at a sacrifice, he and his wife agreed with her brother for the latter to attend the sheriff’s sale, become the purchaser, and, after reimbursing himself out of the property, to hold the remainder in trust for the benefit of the debtor’s wife and children; that the brother attended the sale, announced to the bidders that he ■was buying the property for the benefit of his sister and her children, and thereby was enabled to buy land worth a thousand dollars for $20, and negroes worth several hundred dollars for fifty dollars, and thus to become the purchaser of the property for a comparatively inconsiderable sum; that, to enable him to pay off the debts and carry out the agreement, the debtor placed in his hands other assets, from which he realized $3,200; that he had sold the land for about a thousand dollars, which, with the sum above mentioned, was sufficient to reimburse him; that he had used the negroes for several years, and was in possession of some of them which were of large value. In Holmes v. Holmes, 106 Ga. 858 (33 S. E. 216), an attorney for the defendant in execution purchased the land of his client at a sheriff’s sale, and took a deed in his own name. There was also a parol agreement which was alleged to have been carried out by all the parties concerned, and it was further alleged that the estate had become ready for distribution among the children of the defendant in execution, in accordance with the agreement. In the opinion of the court it was said that it might be contended that the record failed to show any payment by the plaintiffs of any part of the purchase-money, or any other circumstance by virtue of which they could claim a beneficial interest in the property. .Lewis, J., said: “This presents the only real difficulty in the case, but this does not answer the proposition that even if they had no rights by virtue of a voluntary agreement made in their interest, they have rights in this property as heirs at law of their deceased father.” It was added that if, under the facts, there was a resulting or implied trust in favor of the .estate of the decedent, the plaintiffs, as heirs at law, would have an interest in the property. No such facts are involved in the present case. . See, in this connection, Roughton v. Rawlings, 88 Ga. 819 (16 S. E. 89); Lyons v. Bass, 108 Ga. 573 (34 S. E. 721).

What has been said above renders it unnecessary to discuss the ground of the demurrer based on the statute of limitations.

Judgment affirmed.

All the Justices concur.