Parlin v. McClure

Gilbert, J.,

concurring specially. The demurrer to the petition is general and not special. There is no prayer for specific performance. Construing the allegations- of the petition that Winser McClure was a minor and ''was advised by his mother . . that it would be better to have the title to the property conveyed to her, and that she agreed to take and" hold title to said property and would reconvey the same to her son at any time after he became of age,” as setting out acts of fraud upon the part of the mother, the petition sets out a cause of action authorizing a decree to the effect that the payment of the purchase-price by the son, a minor, created an implied trust that will be impressed upon the land for the benefit of sncli minor son or his estate upon his death. The language of the petition quoted above can not be construed as a contract, for two reasons: first, the minor was unable to contract; and second, an express trust can not be created by parol. Civil Code (1910), § 3733; Pound v. Smith, 146 Ga. 431 (96 S. E. 1038); DeLoach v. Jefferson, 142 Ga. 436 (83 S. E. 122). If there is anything to the contrary in the Wilder case, 138 Ga. 573 (supra), or in the Gillespie case, 150 Ga. 106 (supra), it is sufficient to say that neither of them was a full-bench decision. Manning v. Manning, 135 Ga. 597 (supra), is binding authority. The question of laches would be for the jury to determine.