EATON et al. v. BARNES

Supreme Court of Georgia1904-12-21

121 Ga. 548

Summary · law.co

Holding. The trial court erred in sustaining the demurrer because plaintiffs need not allege in their petition that they possess written proof of an express trust; whether competent evidence exists to establish the alleged trust is a matter for trial. The judgment is reversed.

William G. Eaton conveyed land to Joseph Barnes in 1895 through a deed that appeared absolute but contained express terms making it security for a $375 debt. The deed specified that after Eaton's death, Barnes was to sell the property and distribute the proceeds to Eaton's children after recovering the debt amount and taxes paid. When Eaton died intestate in May 1895 and Barnes later refused to acknowledge the trust or sell the land, Eaton's children filed suit seeking to enforce the trust arrangement.

The trial court dismissed the case by sustaining a demurrer, apparently reasoning that because the trust was express in nature, it could not be established through oral testimony alone and therefore failed under the statute of frauds. The appellate court reversed this decision, holding that while express trusts must be created or declared in writing under the code, plaintiffs need not allege in their pleadings how they will prove the trust exists. The court reasoned that on demurrer, the court must assume the plaintiffs will present competent evidence meeting statutory requirements, and the actual sufficiency of their proof is a question for trial, not for dismissal at the pleading stage.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether an express trust can be established in an equitable petition without alleging the existence of written evidence
Application of the statute of frauds to express trusts
Proper standard for evaluating demurrers to pleadings claiming express trusts

Procedural posture

Plaintiffs filed an equitable petition against the defendant; the trial court sustained defendant's demurrer and dismissed the case; plaintiffs appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Simmons, C. J.

An equitable petition was filed against Barnes by Eaton and others, the plaintiffs being the children and only heirs at law of Wm. G. Eaton. The petition alleged, that Wm. G. Eaton had owned a certain tract of land, and had, on February 15, 1895, conveyed the same to the defendant to secure an indebtedness of $375, which sum he owed the defendant. The conveyance was made by a deed absolute on its face, but “ upon the following trusts and conditions: the said Joseph Barnes was to hold the title to said property to secure him in the payment of the said sum of three hundred and seventy-five dollars, without interest. He was authorized to sell the same after the death of said Wm. G. Eaton, and; after deducting from the proceeds of said sale the said three hundred and seventy-five dollars without interest, he was to pay over to the plaintiffs, the children of the said Wm. G. Eaton, the remainder of the proceeds of the sale of said tract of land, giving to each of said children an equal proportion thereof.” Wm¡ G. Eaton died on May 11, 1895, intestate, owing no other debts except that to Barnes; and there has been no administration upon the estate. Barnes had never sold the land, which at the time of the filing of the petition, June, 1904, was of the value of $3,000. The petition further alleged that Barnes denied that he held the property upon any trust or condition, but claimed the absolute title and was about to sell it for much less than its real value. The petitioners prayed that the deed to Barnes be declared to be a trust deed, that the court appoint a new trustee or a receiver and order him to sell the property, and that the proceeds of the sale, after the payment of •costs and after paying to defendant $375 and the amount he had paid for taxes upon the land, be paid to petitioners. To this petition defendant demurred upon several grounds. The court below sustained the demurrer, and the petitioners excepted.

The allegations of the petition show that the trust therein set up is express, and not implied. There was a distinct agreement made between the parties as to what should become of the land after the death of the grantor. The agreement did not contemplate any redemption of the land but the land was to be sold. The proceeds of the sale, after the payment of the debt of the grantee, were not to go to the grantor or his estate, but to his children in equal shares. Such a trust is clearly within the definition of an express trust as given in the code. “Express trusts are those created and manifested by agreement of the parties.” On the other hand, “Implied trusts are such as are inferred by law from the nature of the transaction, or the conduct of the parties.” Civil Code, § 3152. The trust described in the petition was not such an one as would be inferred by law “ from the nature of the transaction or the conduct of the parties,” but was an express trust.

Under the Civil Code, §3153, “All express trusts must be created or declared in writing.”

While the trust must have been created or declared in writing, it was not necessary for the pleader to so allege in the petition. Brown v. Drake, 101 Ga. 130; Walker v. Edmundson, 111 Ga. 454; Taliaferro v. Smiley, 112 Ga. 62. From the trend of the argument of counsel here, the trial judge evidently sustained the demurrer upon the ground that the trust was an express one and could not be established by parol. As to whether the petitioners intend to rely solely upon parol evidence, we are not informed. So far as the pleadings disclose, they may have writings which will be competent evidence to make out their case upon this point. They do not have to allege how they expect to prove their case. Upon demurrer it must be presumed, where the contrary does not appear, that the proof will be such as is required under the statute of frauds. The trial judge, therefore, erred in sustaining the demurrer. Whether the petitioners have any competent evidence with which to establish- the alleged trust is a matter which can be tested upon the trial.

Judgment reversed.

All the Justices concur.