Pound v. Smith , 146 Ga. 431 ( 1917 )

Gilbert, J.

(After stating the foregoing facts.) All that portion of the plaintiffs’ petition and of the prayers thereof which sought to reform the deeds from Pound to John T. Smith was stricken on demurrer, and properly so, because it was not alleged that the agreement between the plaintiffs and their brother was concurred in by Pound, the vendor from whom they purchased the land. Civil Code (1910), § 4579.

1. It can not be determined definitely from the language of the judgment on the demurrer whether the allegations and the prayer with reference to decreeing title to the lands in the plaintiffs for their natural lives, with remainder over to the survivor, were stricken or not. The court, after ruling on the demurrer, allowed the plaintiffs to amend their petition by substituting for the prayer for reformation of the deeds a prayer in the words quoted at the close of the statement of facts.' The defendant objected to the allowance of this amendment, and to the overruling of this objection lie excepted. This ruling was error. The prayer sought the reformation of an alleged parol contract by decreeing a remainder over to survivors. To do this would be to reform a parol contract into an express trust. All express trusts must be created or declared in writing. Civil Code (1910), § 3733.

2. No question is properly made by the petition as to the right of the plaintiffs to have specific performance of their contract, as against their brother’s administrator. The rule is that the plaintiff in an equitable petition must not only allege facts which will show that he is entitled to such relief, but his prayers must indicate the nature of that relief. There was no prayer for specific performance. “The plaintiff in an equitable petition will never be granted any relief unless there is a prayer asking for the specific relief sought, or unless there is a prayer for general relief, and the nature of the case is such that under the prayer for general relief some character of relief may be granted which is consistent with the case made by the petition and with the specific prayers therein.” Copeland v. Cheney, 116 Ga. 685, 687 (43 S. E. 59). The prayer for general relief in this case is not sufficiently specific to embrace a prayer for specific performance, and for that reason we will not consider the contentions of the plaintiffs for this relief.'

3. The petition thus pruned by demurrer is sufficient' in its allegations to constitute a suit to enforce an implied trust, and for this relief the prayers are broad enough.

4. According to the allegations of the petition, the two sisters and their brother agreed to purchase the two tracts of land in controversy. It was a part of their agreement that the title should be taken in the three jointly, with the right of survivorship. .The contract was in parol. The sisters paid their share of the purchase-money. The brother, disregarding the agreement, took the title in himself alone. Under these circumstances the law implied a trust in favor of the sisters to the extent of their interest. Civil Code (1910), § 3739, par. 1. The law, in thus implying a trust, simply makes the grantee in the deed the trustee for the benefit cf those whose money was used in the purchase of the land. The legal title was in the brother. The beneficial interest was in the three purchasers. Accordingly, the plaintiffs would be entitled, on proof that they had paid their share of the purchase-money, to a decree that the administrator of their deceased brother be dedared to hold the land in trust for their benefit to the extent of their interest, to wit, two thirds.

The jury returned a verdict awarding to the plaintiffs the whole of one of the tracts of land; whereupon the court decreed the whole interest in this tract to the plaintiffs for and during “their natural lives, with remainder to the survivor of the two in fee.” This verdict is not in harmony with the pleadings and facts of the case. For this reason the judgment of the court must be reversed. The plaintiffs are not entitled to the whole interest, nor could a reversionary interest be decreed.

The motion for a new trial contains many assignments of error, but it is not necessary to pass upon them in detail. The charges of the court complained of were subject to one of the criticisms made, which was that the plaintiffs in any event would only be entitled to a two-thirds interest, whereas the court instructed the jury, if they found for the plaintiffs, that they might award them the whole interest. On another trial the instructions of the court will, of course, be in accord with the rulings above made in this particular.

5. The assignments of error in regard to the admission of evidence were not sufficiently full and specific for this court, without looking to the brief of evidence, to say that the trial court erred for any of the reasons assigned. Georgia Northern Ry. Co. v. Hutchins, 119 Ga. 504 (46 S. E. 659); Baxter v. Camp, 126 Ga. 354 (54 S. E. 1036).

6-7. The refusal of the court to grant a nonsuit was not error. Nor was it error to charge the law in regard to implied trusts.

Judgment reversed.

All the Justices concur.