1. An implied trust results from the fact that one person's money has been invested in land and the conveyance taken in the name of another. It is a mere creature of equity.
(a) An implied trust may arise from a payment of a portion of the purchase-money.
(b) An express oral promise by the grantee to hold in trust for another will not operate to defeat a resulting trust, where, on the special equities growing out of the transaction, the law would, in the absence of such agreement, imply a trust.
2. The evidence introduced on the interlocutory hearing not appearing, it can not be determined on review whether it was error to continue, until further order, the restraining order previously granted.
No. 15805. MAY 16, 1947. REHEARING DENIED JUNE 13, 1947.
Oscar M. McCollum brought a suit in equity against Eva Lee McCollum. His petition alleged: He and the defendant entered into a ceremonial marriage on September 7, 1927, but this contract had recently been annulled on the ground that the defendant's marriage to another had not been dissolved. About 1934 the plaintiff and the defendant purchased certain real estate known as 996 Hirsch Street in Fulton County for $750. On a down payment, the plaintiff paid $200 and the defendant $100, and the plaintiff thereafter paid the full balance of the purchase-price. The plaintiff also expended $900 for material necessary to improve the property, and paid all of the costs for labor. The plaintiff and the defendant occupied the property as their home until about 1942 or 1943. In 1943 they purchased another tract of land in the same county known as 67 Ormond Street for approximately $1850. The down payment of $800 on this property was furnished almost entirely by the plaintiff, and the balance was paid from the monthly rentals of the Hirsch Street property. The plaintiff expended from his own funds $2000 in improvements placed on this property. From proceeds derived from a mortgage placed on the Ormond Street property for $425, and from rents received from the Hirsch and Ormond Street properties, the plaintiff and the defendant purchased certain other property known as 384 Pavillion Street. The plaintiff gave the defendant an undivided half interest in all of the property which they had so acquired, and by mutual consent it was agreed that title to all of the property as it was acquired would be placed in the name of the defendant and that she would hold the same in her name as trustee for both. Twice during the time when the plaintiff and the defendant lived together, the defendant had filed suit against him for total divorce. The first suit for divorce was voluntarily dismissed. During the pendency of the second suit, the plaintiff learned for the first time that the defendant's marriage to another was undissolved, and a cross-action was filed to establish the plaintiff's title in their joint
property. This entire proceeding was dismissed upon the assurance from the defendant that as soon as their marriage could be dissolved she would convey to the plaintiff his undivided half interest in all of the joint property; but since a decree has been rendered dissolving the marriage, the defendant has refused to comply with her agreement. The defendant, without the consent of the plaintiff, has disposed of the Pavillion Street property for some amount unknown to him and appropriated the proceeds to her own use. The plaintiff is without an adequate remedy at law.
Besides for process, the prayers were: (a) that the defendant be enjoined from disposing of the remaining joint property, or encumbering the same in any manner; (b) that a receiver be appointed to hold the property, collect the rents, and sell the same under direction of the court; (c) that the defendant be required to account to him for his half of the proceeds received from a sale of the Pavillion Street property; that he have judgment for the same, and that it be decreed a special lien against the interest of the defendant in the remaining joint property; (d) that title to an undivided half of the Hirsch and Ormond Street properties be decreed in him, and that, upon a sale of the same by a receiver, his half of the proceeds be paid over to him.
The petition was demurred to upon both general and special grounds. The special grounds have not been passed upon, and for that reason we think it unnecessary to set them out here. The grounds of general demurrer attack the allegations of the petition as insufficient to state a cause of action for any of the relief prayed.
At the interlocutory hearing, the judge declined to pass on the grounds of special demurrer, overruled all other grounds of demurrer; refused to appoint a receiver, and enjoined the defendant from transferring, selling, or encumbering any of the property described in the petition until further order of the court. The defendant excepted to this judgment, and the case is here for review on direct bill of exceptions.
1. Treating the allegations of the petition as true, which we must do for purposes of the demurrer, we are of the opinion that the court correctly held that the petition stated a cause of action.
Trusts are implied — "(1) Whenever the legal title is in one person, but the beneficial interest, either from the payment of the purchase money or other circumstances, is either wholly or partially in another." Code, § 108-106. In the instant case it affirmatively appears from the petition that the plaintiff, at a time when he thought he was legally married to the defendant, furnished the greater portion of the purchase-money with which they acquired the lands involved; that title was taken in the name of the defendant (evidently for reasons satisfactory to both); but that by "mutual consent" it was understood and agreed they would own the lands equally and "she would hold the same in her name as trustee for both." In Jackson v. Jackson,150 Ga. 544, 554 (104 S.E. 236), it was said: "In no case decided by this court, so far as we have been able to ascertain, has it been held that an express oral promise by the grantee to hold in trust will operate to defeat a resulting trust, where, on the special equities growing out of the transaction, the law would, in the absence of such agreement imply a trust." Three separate parcels of realty are involved here. The allegations of the petition show that on the purchase of the first two, the plaintiff furnished the major portion of the down payment; that he paid in full the remaining purchase-money due for the first tract; and the balance of the purchase-money due for the second tract was paid entirely from rents received from the first purchased tract; and that the down payment for the third tract was made from proceeds derived from a mortgage given on the second tract, and the balance from rents received from the first two tracts purchased. The petition further alleges that the plaintiff expended large sums of money in making improvements on the several parcels of land, and that he and the defendant jointly had possession thereof. An implied trust may arise from a payment of a portion of the purchase-money. Hall v. Edwards,140 Ga. 765, 767 (79 S.E. 852); 26 Rawle C. L. 1224, § 70. An implied trust results from the fact that one person's money has been invested in land, and the conveyance taken in the name of another. It is a mere creature of equity. Berry v. Brunson,166 Ga. 523, 529 (143 S.E. 761); 26 Rawle C. L. 1214, § 57. InScott v. Taylor, 64 Ga. 506, 508, this court said: "The principle is well settled by the elementary writers, and numerous adjudicated cases, that when the purchase-money is paid by one, and the legal title taken in the
name of another, the person named in the conveyance is but a trustee of him who paid the consideration." Again in Swift v.Nevius, 138 Ga. 229, 232 (75 S.E. 8), this court said: "The essence of the equitable defense, as to the Blue Spring place, is that the defendant and McFarland entered into an agreement to buy the property together. McFarland was to put up the money for expenses and for the purchase-price, if the land was obtained. Swift, the defendant, gave certain valuable information which he had acquired as to the location, water supply, etc., and was to negotiate for the purchase, and perform certain other services. He fully complied with his agreement, and thus in effect paid his part of the purchase-price. For convenience in exploiting the property in connection with a plan to furnish water to the City of Columbus, in which a certain engineering company was to take a part, the deed was taken in the name of McFarland, . . by agreement for the benefit of both. The defendant took possession of the property, and has managed it in accordance with the agreement between him and McFarland on that subject. . . If these facts are true, as the demurrer admits them to be, an implied trust exists in favor of the defendant as to a half interest in the Blue Spring property." Applying the principles just announced to the allegations of the petition in the case at bar, admitted as they are by the demurrer to be true, they were sufficient to state a cause of action and it was not error for the court to overrule the general demurrer.
2. Where a bill of exceptions complains of a grant of an interlocutory injunction upon the ground that it was an abuse of the discretion vested in the judge, and the evidence is neither incorporated in the bill of exceptions nor attached thereto as an exhibit properly authenticated, and it does not appear that a brief of the evidence was approved and filed so as to become a part of the record, the judgment will be affirmed, because without such evidence, as is the case here, this court can not determine whether the court erred in granting the interlocutory injunction. There being no brief of evidence before us, we will assume that the judgment of the court below was correct and affirm it. Voyles v. Federal Land Bank of Columbia, 173 Ga. 844
(162 S.E. 106).
Judgment affirmed. All the Justices concur.