Wallace v. Mize , 153 Ga. 374 ( 1922 )

Hines, J.

(After stating the foregoing facts.)

1. What statute of limitations is applicable to actions to impose and enforce implied trusts ? By. analogy to the doctrine that actions for the recovery of land can be defeated by prescriptive title, acquired by possession for seven years under color of title, actions to enforce implied trusts must be brought within seven years from the time the actions accrue. Freeman v. Cooper, 14 Ga. 238; Cade v. Burton, 35 Ga. 280; Knox v. Yow, 91 Ga. 367, 376 (17 S. E. 654); McWhorter v. Cheney, 121 Ga. 541, 547 (49 S. E. 603); Pierce v. Middle Ga. Land &c. Co., 131 Ga. 99, 103 (61 S. E. 1114); Basch v. Frankenstein, 134 Ga. 518, 522 (68 S. E. 75); Beasley v. Smith, 144 Ga. 377, 381 (87 S. E. 293). While not all of these cases deal with the statute of limitations applicable to suits to impose implied trusts, the principle of these decisions covers the cases of implied trusts. In Basch v. Frankenstein, supra, which involved an implied trust, this court treated the period of seven years as the proper bar to such actions. So we are of the opinion that actions to. impose and enforce implied trusts must be brought in seven years.

2. The general rule, that the statute of limitations does not run in favor of a trustee against the cestui que trust, applies only to express trusts; and does not embrace implied or constructive trusts. These latter are within the operation of the statute of limitations, and suits to enforce them may become barred. Thomas v. Brinsfield, 7 Ga. 154; 25 Cyc. 1155.

3. This rule is subject to qualification and exception. Even though the trust sought to be enforced is not an express trust, yet if it is solely within the jurisdiction of a court of equity, and is recognized and acknowledged by the person chargeable as trustee, it is not subject to the operation of the statute until it is repudiated by the trustee. 25 Cyc. 1158 (B). Implied trusts are solely within the jurisdiction of a court of equity, and in dealing with them this court has so treated them, thus bringing them within the above qualification and exception. In this State, when the trustee in an implied trust recognizes the trust, and treats it as subsisting within seven years next preceding the institution of an action to enforce it, such suit is not barred by the statute of limitations. Garner v. Lankford, 147 Ga. 235 (93 S. E. 411); McDowell v. Donalson, 149 Ga. 600 (101 S. E. 578); Hawkins v. Hawkins, 150 Ga. 61 (102 S. E. 431).

4. 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. Garner v. Lankford, McDowell v. Donalson, Hawkins v. Hawkins, supra; Oliver v. Hammond, 85 Ga. 323, 331 (11 S. E. 655); Teasley v. Bradley, 110 Ga. 497 (35 S. E. 782, 78 Am. St. R. 113); Rucker v. Maddox, 114 Ga. 899 (41 S. E. 68); Barber v. Barber, 125 Ga. 226 (53 S. E. 1017). There is some evidence tending to show that E. P. Mize, on November 30, 1883, invested money of his first wife, who was the mother of the claimant, in the land in dispute; that the husband during the lifetime of the wife recognized and acknowledged the trust thus raised and implied; and that after the death of the wife, and up to a period within much less time than seven years prior to the time the son filed his claim to an undivided half interest in this land, the father recognized the claim of the son to such interest and share in this land. Under these circumstances it became an issue of fact, to be determined by the jury, whether the husband bought this land with money of his wife, and whether, after her death, he recognized and acknowledged the trust, and treated the son as entitled to an undivided half interest in this land. As a new trial is granted, we shall not deal with the sufficiency of the evidence to establish either of these propositions.

5. In the fourth ground of the motion for new trial the plaintiffs complain that the court erred, when timely requested in writing so to do, in refusing to charge the jury as follows: “ All admissions which have been shown to have been made by E. P. Mize must be scanned with care by the jury.” The law is that “ all admissions must be scanned with care.” Civil Code, § 5784. While not in the exact language of the code, this request was within the sense and spirit of the law. Ocean Steamship Co. v. McAlpin, 69 Ga. 437 (4). This principle was peculiarly pertinent and applicable to the issue involved in this case. The statements and admissions relied upon by the claimant “ were the verbal declarations of a deceased person, deeply affecting his estate;” and the admonition contained in this request should have been given to the jury. Counsel for the claimant insists that this request was properly refused, because it assumed or intimated that admissions against his interest had been made by F. P. Mize, and that for this reason the court did right in refusing to give the instruction. It is true that it is never error for the court to refuse to give a written request in charge to the jury which, if given, would contain an intimation of opinion by the court upon an issue of fact in the ease. Mitchell v. Crummey, 134 Ga. 383 (2) (67 S. E. 1042); Insurance Co. v. Leader, 121 Ga. 260 (5) (48 S. E. 972). Where a fact is undisputed, the court may so tell the jury, and such instruction would not be erroneous. East. Tenn., Va. & Ga. Ry. Co. v. Markens, 88 Ga. 60, 62 (13 S. E. 855, 14 L. R. A. 281); Southern Ry. Co. v. Chitwood, 119 Ga. 28 (45 S. E. 706); Greer v. Raney, 120 Ga. 290 (47 S. E. 939). The claimant relies upon alleged statements and admissions of F. P. Mize to make out his case; and there was no evidence on the part of the plaintiffs directly contradicting the making of such statements and admissions. In view of this state of the evidence, the court could give a written request to charge in which the proof of the making, but not the truth, of such statements and admissions is assumed. In view of the importance of an instruction upon this subject, where the estate of a deceased person depends upon his alleged statements and admissions, which were beyond the power of the plaintiffs to disprove, because the maker was dead, and there were no other persons present except the witnesses testifying to such statements or admissions, a new trial should be granted in this case.

6. In the fifth ground of the motion it was alleged that the court erred in refusing to permit Mrs. F. P. Mize to testify that “ Mr. Mize, while in possession of the land, stated to witness that not a penny of his wife’s money ever went into this land, and that he paid for it himself.” The claimant introduced evidence tending to show that the deceased, while in possession of the land in dispute, had made statements and admissions by which he recognized and acknowledged the existence of the -implied trust hereinbefore dealt with, to the effect that he held possession of the land in dispute under such trust, for the use and benefit of his deceased wife, and after her death for their only child. A vital issue in this case was the character of the possession of the deceased. Did he hold as trustee for his son under an' implied trust, or did he hold adversely to his son ? Declarations of a person in possession of land, in favor of his own title, are admissible to prove his adverse possession. Civil Code, § 5767. “Where A claimed under a verbal gift from B to his son, which it was sought to prove, by declarations of B, was made at some period previous to the declarations and where it was also shown that the property continued in the possession of B: Held, that other sayings, inconsistent with such a gift by B, at other times, made while he continued in possession, were admissible as evidence for the opposite party.” Hansell v. Bryan, 19 Ga. 167 (2); Bowman v. Owens, 133 Ga. 49 (65 S. E. 156); Rucker v. Rucker, 136 Ga. 830 (72 S. E. 241).

“ Declarations of one in possession of land, that the land is his, are admissible to show adverse possession, but not for any other purpose.” Harrison v. Hatcher, 44 Ga. 638 (4), 643; Dawson v. Callaway, 18 Ga. 573 (4). “The declarations of a party in possession in favor of his own title are admissible to prove adverse possession.” Huggins v. Huggins, 71 Ga. 66.

The claimant in this case relied on admissions of his father, whose mouth was closed by death, to establish the implied trust which he sought to enforce. Under these circumstances, declarations of the father, explaining the character of his possession, and to that extent rebutting the theory of the claimant, should have been admitted, while favorable to the father. Banks v. Bradwell, 140 Ga. 640, 644 (79 S. E. 572). Where one is shown to have been in possession of land, declarations made by him while his possession was continuing, to the effect that he was the owner of the land, are admissible to show the adverse character of his possession. Copeland v. Jordan, 147 Ga. 601 (95 S. E. 13). So we are of the opinion that the court erred in refusing to permit the plaintiffs to prove the declaration of the intestate, while in possession of the land in dispute, “ that not a penny of his wife’s money ever went into his land, and that he had paid for it himself,” the objection to this evidence being that it was a self-serving declaration. -This testimony was competent to explain the character of the possession of the declarant. This ruling does not conflict with the cases which hold that such declarations are not competent to establish ownership. Dozier v. McWhorter, 117 Ga. 786 (45 S. E. 61). And to prove a gift. Rucker v. Rucker, supra. In the case at bar the title and ownership of F. P. Mize were shown by his deed. The only issues involved were, first, whether his first wife’s money had gone into this land; and secondly whether he held adversely to the claimant. This evidence clearly shed light upon the character of his possession. If he paid for this land with his own funds, and took the deed in his own name, it might be inferred that he held adversely to the claimant.

7, 8. In the sixth ground of their motion for new trial the plaintiffs complain that the court erred in refusing to permit Joe Mize, a witness offered by them, to testify in their behalf. Counsel for the plaintiffs stated to the court, that they expected to prove by this witness “ that this land in dispute was not paid for except with same money that Bud Mize (E. P. Mize) obtained from his father’s estate, and that it was not paid for until after the deed, and it was paid for out of his distributive share' of his father’s estate.” The court excluded this witness on the ground that counsel for the plaintiffs, at the opening of the case, had invoked the rule for the sequestration of the witnesses, when counsel for the claimant had sent their witnesses out, and when counsel for the plaintiffs stated that they had no witness except the parties. This witness had been in court and heard a part of the testimony of the other witnesses. Mr. Perry, of counsel for the plaintiffs, when he called this witness, stated they did not know of any evidence which they could introduce from this witness, until after the other witnesses were examined, but they understood he was in court part of the time. Thereupon counsel for the claimant made the objection to this witness testifying. Counsel for the plaintiffs said that they made the statement that they had no witnesses except the parties, in good faith. Mr. Perry stated in his place that he did not know that he could make the above proof by this witness until the dinner hour; and that he proposed to show by the administrator, Mr. Martin, his associate counsel, and Mrs. Mize, that neither one of them knew, at the time the rule of sequestration was invoked, that this witness knew the above facts. Mr. Martin testified that he did not know that this witness would give this testimony, and did not learn that he would until yesterday afternoon, after they started to leave, and had gone down the road in an automobile. He did not know he was in the court-room here this morning, but did know he was in the court-room yesterday afternoon. Judge Stark, of counsel for the claimant, stated that Mr. Mize was in this case, was called, and “ has been sitting right here.” Had a conference at Commerce the other day, and Mize was down there, up in Martin’s office where the conference was held looking to a settlement of this matter, in the presence of Perry and himself. He was there in the presence of Mrs. Mize. He “was here yesterday morning and sitting right there.” Mr. Martin stated that this witness came into his office at the conference at Commerce, asked if Luther Mize was in, and stayed a few minutes. He had no conversation with this witness. They did not invite him. On this showing the court sustained the objection of counsel for claimant to this witness testifying, and refused to permit him to testify in behalf of the plaintiff.

Where the sequestration of the witnesses has been ordered by the court, and in violation of the court’s order a witness remains in court and hears the testimony of the other witnesses, this does not disqualify the witness, and render him incompetent. It may subject the witness to attachment and punishment for contempt. Rooks v. State, 65 Ga. 330; Lassiter v. State, 67 Ga. 739; Bone v. State, 86 Ga. 108 (12 S. E. 205); Metropolitan St. R. Co. v. Johnson, 90 Ga. 500 (16 S. E. 49); May v. State, 90 Ga. 793, 800 (17 S. E. 108); Cunningham v. State, 97 Ga. 214 (22 S. E. 954); McWhorter v. State, 118 Ga. 55 (6) (44 S. E. 873); Davis v. State, 120 Ga. 843 (2) (48 S. E. 305); Phillips v. State, 12Ga. 358 (49 S. E. 290); Taylor v. State, 132 Ga. 235 (63 S. E. 1116); Withrow v. State, 136 Ga. 337 (6) (71 S. E. 139).

In Etheridge v. Hobbs, 77 Ga. 531 (3 S. E. 251), the witnesses were sworn and put under rule, but one of them remained in the court-room, and heard what transpired throughout the trial. After the testimony had closed, the plaintiffs offered to prove by such witness facts which were contested by the defendants. This court held, that there was no abuse of discretion in refusing to allow him to testify. The fact that the evidence had closed distinguishes this case from the instant case, and the decisions of this court above cited. Counsel for the claimant relies on Pergason v. Etcherson, 91 Ga. 785 (18 S. E. 39). There the witness stated he had been assured by counsel that he would not be introduced. His statement was confirmed by counsel, accepted by the court, and the witness was thereupon discharged from the proceeding for contempt. Afterwards counsel applied to the court to introduce and examine this witness, on the ground that he was mistaken in thinking that the witness Avould not be sworn and examined. The court refused to permit the Avitness to be sworn. In that case counsel for one of the parties had stated to the witness that he would not be sworn,_ and in consequence the witness disobeyed the order of the court. This court held, that, “ under the peculiar circumstances of this case, we will not control the discretion of the court below in refusing to allow the witness to testify.” “ There the conduct of the counsel amounted to a voluntary waiver of their right to introduce the witness who had disobeyed the court’s order, and by means of such waiver they had procured the discharge of the Avitness from the rule for contempt. After having thus waived the right to introduce the witness under the circumstances, this court would not compel the trial judge to allow the waiver to be recalled and the witness examined.” Cunningham v. State, supra.

In the case at bar the facts are very different. Here counsel did not know that the witness knew of the facts sought to be proved by him, until after the rule had been invoked, and the ease had progressed for some time. On the afternoon of the day when the trial commenced, and presumably after the adjournment of the court for the day, one of the counsel for the plaintiffs, in a talk with this witness, discovered that he would testify to the facts set out above. The testimony next morning was. introduced before this counsel returned. Mr. Perry did nnt know that he could make this proof by this witness until the dinner hour. There is no proof that this witness was in court, with the knoAvledge of the plaintiffs or their counsel, after it was discovered that he knew facts vital to the case of the plaintiffs. In vierv of the overwhelming importance of this proof to the cause of the plaintiffs, and in view of the fact that F. P. Mize was dead, we think the court erred in refusing to let this witness be examined.

Judgment reversed.

All the Justices concur.