Drake v. Drake

129 S.E. 635, 161 Ga. 87, 1925 Ga. LEXIS 304

• Court: Supreme Court of Georgia
• Decided: September 17, 1925
• Docket: No. 4641
• Status: Published

Opinion

Atkinson, J.

The Civil Code (1910), § 3739, provides in part as follows: “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. 2. Where, from any fraud, one person obtains the title to property which rightly belongs to another.” Held:

1. The allegations of the petition as amended in this case, construed most strongly against the pleader, do not raise an implied trust upon either of the above principles. The plaintiff’s suit was predicated on application of the principles stated in the above-quoted provisions of the code.

2. In Rives v. Lawrence, 41 Ga. 283, and Bailey v. Layfield, 157 Ga. 546 (122 S. E. 193), lands were to be bid in at judicial sales by parties who occupied fiduciary relations with the complainants, and under representations and agreements by the bidders by which the lands were to be bid for and title taken in the name of the complainants. These facts distinguish the cases from the instant case.

3. Applying the foregoing rulings, the court did not err in sustaining the separate demurrer that was filed„by one of the defendants.

Judgment affirmed.

All the Justices concur. Comers G. Moore and Lamar C. Bucher, for plaintiff. Envin, Erwin & Nix and Berry T. Moseley, for defendants.