1. Under the Code, § 48-108, the donee of a gift will hold it as a trustee for the donor, if it is made for a specific purpose and such purpose fails or can not be accomplished.
(a) Where a gift of real estate is made in contemplation of an engagement to marry, and the engagement is broken by the donee, equity in a proper case will enforce a reconveyance of the property, or decree that title is in the donor.
(b) The consideration of a deed, stated merely by way of recital, may always be inquired into when the principles of justice so require.
(c) Implied trusts are not within the statute of frauds; also, the facts upon which they are based may be alleged and proved by parol without violating the parol-evidence rule.
(d) Under the preceding rulings, the amended petition of the plaintiff against his alleged former fiancee and her mother, alleging that because of his engagement with the former, and for no other consideration, he had given to her a described tract of land, and that on breach of the engagement by the fiancee the property was conveyed to the mother, without consideration, to be deeded by the latter to the plaintiff in a certain event, and praying for specific performance and general relief. stated a cause of action, and therefore was not subject to an oral motion to dismiss in the nature of a general demurrer. *Page 881
2. Where, after the denial of a motion for nonsuit, a verdict for the plaintiff is rendered, the court will not pass upon an assignment of error as to such motion, where the motion for new trial contains the general grounds that the verdict is contrary to evidence and without evidence to support it. Accordingly, this court will consider questions as to the sufficiency of the evidence only under the motion for new trial.
3. On the plaintiff's action, the verdict in his favor was authorized.
(a) The fact that the plaintiff was a married man at the time of entering into the alleged marriage engagement, though obtaining a divorce later, did not under the facts of the case demand a verdict against him on the ground that the engagement was void as being against public policy.
(b) The rule that the law will not aid a party to an illegal contract or transaction would not apply in favor of the alleged fiancee's mother, if the plaintiff and the daughter deeded the property to the mother to be later reconveyed by the latter to the plaintiff, all in recognition of his claim and without other consideration, as some of the evidence tended to show.
(c) The court did not err in refusing a new trial on the general grounds relating to the plaintiff's action.
4. The charges to the jury on specific performance and cancellation were harmless to the defendants, and there is no merit in other exceptions to the charge relating to the main action.
5. On the cross-action filed by the defendant, the verdict for the plaintiff was authorized; and the complaints against charges as to that action show no cause for a reversal.
6. The court properly overruled the motion for new trial.
No. 13546. MARCH 19, 1941. REHEARING DENIED APRIL 3, 5, 1941. E. G. Kelly filed a suit in equity against Mrs. Dorothy G. Kelly Guffin and Mrs. Bertie Kay, her mother. The petition made substantially the following allegations: On May 20, 1937, petitioner purchased a described tract of land situated in the city of Atlanta for an agreed purchase-price of $4000, paying $2000 in cash, the balance being payable $100 quarterly with interest. At the time of such purchase Mrs. Guffin, then a widow named Dorothy Grace Kelly, had promised that she would marry petitioner, and in consideration of such promise petitioner had the deed to the aforesaid realty made jointly to said defendant and himself. Thereafter Mrs. Guffin, her mother, Mrs. Bertie Kay, and her father, along with petitioner, moved into said premises and lived there together, petitioner charging them no rent for such occupancy. Mrs. Guffin and petitioner continued to go together, and were engaged to be married to each other until June 16, 1939, at which time Mrs. *Page 882 Guffin married another man and removed with her husband to a different place.
During the period petitioner and defendants were living in said premises, and before the marriage of Mrs. Guffin, petitioner paid $900 of the balance owing on said premise. The remainder of $1100 is still unpaid. Immediately following the marriage of Mrs. Guffin, petitioner requested of her that, in view of her failure to marry him as she had promised at the time said premises were purchased, she deed over to him the half interest which he had procured to be deeded in her name in reliance upon her promise of marriage with him, and she then proposed that the property be deeded to her mother Mrs. Bertie Kay, upon the understanding and agreement that when petitioner married, the property would then be deeded to him by Mrs. Kay, which agreement was consented to by Mrs. Kay. Relying on such agreement, the plaintiff, on June 21, 1939, went with Mrs. Guffin to the office of an attorney, where they both signed a paper which petitioner understood was to carry into effect the previous agreement whereby the property was to be held by Mrs. Bertie Kay until such time as he might thereafter marry, when Mrs. Kay was to reconvey the property to him. Thereafter he continued to reside in said premises with Mrs. Bertie Kay and her husband until July 13, 1939, at which time he married. Whereupon Mrs. Bertie Kay told him that, while he could continue to live in said premises, she would not allow his wife to do so; and she further refused to comply with her promise and agreement to convey said premises to petitioner, and he has been compelled to find another place of residence for himself and wife. Petitioner shows that this conveyance of said premises to the defendant Mrs. Kay was without any consideration whatsoever, and was done by him solely because of and in reliance upon the promise of said defendant to reconvey the premises to him at any time he should subsequently marry, and petitioner had confidence in both of the defendants at the time he transferred said premises to the defendant Mrs. Kay because of the close and cordial relationship which had existed between them for several years preceding.
The plaintiff amended his petition by adding the following: After the purchase of said realty Mrs. Guffin and plaintiff were mutually desirous that said realty should become the individual property of Mrs. Guffin in the event of the death of plaintiff before *Page 883 the consummation of their marriage; and to accomplish this result the plaintiff, on May 24, 1937, four days after the purchase of said realty, executed and delivered to Mrs. Guffin a deed to the same, reciting a consideration of $2000, but no consideration whatsoever then or thereafter was actually paid to the plaintiff; such deed having been made on the express understanding and agreement with plaintiff that it would not be recorded and was to be of no force and effect except upon the happening of the contingency of plaintiff's death before the marriage of plaintiff to said defendant; and plaintiff and said defendant continued in joint possession of said property; and, in accordance and compliance with said agreement, said defendant did not make any claim to sole ownership of said property under said deed, and did not record same, and thereafter continued to admit plaintiff's title in said property until July 14, 1939, after the plaintiff's marriage, when, in violation of and contrary to such agreement, Mrs. Guffin had the deed recorded and then began, for the first time, to claim that said deed vested in her all of plaintiff's title and interest in said property, and that since the execution of said deed she had been the sole owner of the property therein described; and plaintiff's first knowledge of such recording and claim of ownership was when the defendant's answers were filed in this case. He prayed for a decree of specific performance, requiring both defendants to convey the property to him; for cancellation of the deed made by him to Mrs. Guffin on May 24, 1937; and for general relief.
The defendants filed answers, admitting some of the plaintiff's allegations and denying others. They admitted the marriage of Mrs. Guffin and the later marriage of the plaintiff, but denied that there was ever any engagement between the plaintiff and Mrs. Guffin. They admitted the execution of the deeds in question, but they alleged, that the deed of May 20, 1937, represented a joint purchase of the land by the plaintiff and Mrs. Guffin, then Mrs. Kelly; that the deed of May 24, 1937, was made in pursuance of a transaction in which Mrs. Guffin purchased the interest of the plaintiff on stated terms; that the deed of June 21, 1939, represented a gift from Mrs. Guffin to her mother, Mrs. Kay; and that at his own request the plaintiff was permitted to join in the execution of this deed, and did join therein as one of the grantors. Mrs. Guffin filed a cross-action in which she sought to recover of the *Page 884 plaintiff $1500 alleged to have been loaned by her to him on June 21, 1939, as evidenced by a check of that date. She alleged that she demanded payment on September 6, 1939, and prayed for recovery of the principal, with interest from the latter date.
On the trial the defendants moved to dismiss the suit, on the ground that the petition as amended did not state a cause of action. This motion was overruled. After the plaintiffs had introduced evidence and rested, the defendants moved for a nonsuit, which motion was overruled. The defendants excepted pendente lite to both rulings. The evidence was in conflict on most of the material issues made by the petition and the answers. The plaintiff testified in support of every material allegation of his amended petition, but also testified that at the time he entered into the engagement with Mrs. Guffin, in April, 1937, he was a married man, living in a state of separation from his wife, and did not obtain a divorce until some time during the following year, 1938. In reference to the cross-action, Mrs. Guffin testified that she loaned the plaintiff $1500 on June 21, 1939, which had not been repaid, and introduced a paid check signed by her and payable to him for that amount. The plaintiff testified in effect that this check was made merely to restore to him money which belonged to him, but which he had deposited in her name in view of their engagement. The jury returned a verdict in favor of the plaintiff, finding that the title to the property described in the petition be decreed in him free from claim of either of the defendants. A decree was entered accordingly, and further that the deed of May 24, 1937, be canceled. The defendants filed a motion for new trial, which was amended by the addition of several grounds complaining of alleged errors in the charge of the court. The court overruled the motion, and the defendants excepted. They assigned error also on their exceptions pendente lite. 1. The first question is whether the court erred in overruling the motion to dismiss the suit, on the ground that the petition as amended did not state a cause of action. The plaintiff alleged, in effect, that in May, 1937, he and Mrs. Guffin, who was then a widow, were engaged to be married; that in contemplation *Page 885 of that event and without other consideration, he purchased the land in question on May 20, 1937, and had the property conveyed jointly to him and Mrs. Guffin; and that on May 24, 1937, he conveyed his interest in the property to her on the same consideration. It was alleged that this latter deed was made with the understanding that it would be of no force and effect except on the happening of the plaintiff's death before the marriage; that on June 16, 1939, Mrs. Guffin breached her engagement with the plaintiff by marrying another man; that, following this event, plaintiff requested a return of the property to him, whereupon Mrs. Guffin proposed that it be deeded to her mother, Mrs. Kay, upon the understanding and agreement that when the plaintiff himself married, it would then be deeded to him by Mrs. Kay, which agreement was consented to by Mrs. Kay, and the deed was made to her accordingly; such deed being without any consideration whatever from her. The plaintiff married another woman on July 13, 1939. Thereafter Mrs. Kay refused to convey the property to the plaintiff, as she had agreed. The plaintiff prayed for a decree of specific performance against both of the defendants, requiring them to convey the property to him, for the cancellation of the deed made by him to Mrs. Guffin on May 24, 1937, and for general relief.
In considering whether the petition stated a cause of action, the allegations must be taken as true; and the fact that at the time of making the engagement the plaintiff had a living wife can not affect the question, since this fact was developed by the evidence, and did not appear in the petition. We think that the petition stated a cause of action based on the theory of implied trust, regardless of other theories. The consideration of a deed when stated merely by recital may always be inquired into when the principles of justice require it. Code, § 29-101. CompareRheney v. Anderson, 22 Ga. App. 417 (96 S.E. 217);Ramsey-Fender Motor Co. v. Chapman, 46 Ga. App. 385 (168 S.E. 92). According to the petition, this property was merely given to Mrs. Guffin in view of their engagement to marry. The Code declares: "If a gift shall be made for a specific purpose expressed or secretly understood, and such purpose is illegal, or from other cause fails or can not be accomplished, the donee shall hold as trustee for the donor or his next of kin." § 48-108. It is generally held that *Page 886 gifts made in contemplation of marriage are subject to an implied condition that they are to be returned if the donee breaks the engagement, and that the rule applies to real estate as well as personalty; also that in a proper case equity will take jurisdiction to enforce a reconveyance. 28 C. J. 645, 651, §§ 41, 48; 8 Am. Jur. 858, § 20; 24 Am. Jur. 759-761, §§ 56-59; 92 A.L.R. 604-610, see cases cited in note.
Under the foregoing principles, the petition would clearly have stated a good cause of action as against Mrs. Guffin, based on implied trust, if it had been predicated solely upon the alleged facts as they existed at the time of the conveyance to Mrs. Kay; and so we next consider the effect of that conveyance and of the oral agreement with reference thereto, under the allegations of the amended petition. If, as we have held above, the plaintiff had equitable title to the property at the time of the latter conveyance, Mrs. Kay, having paid nothing whatever for the property, acquired the legal title thereto subject to the plaintiff's equity; and this would be true regardless of the oral agreement to convey the property to him on his marriage. See, in regard to implied trusts, Code, §§ 108-106, 108-107; FirstNational Bank Trust Co. v. Roberts. 187 Ga. 472 (3) (1 S.E.2d 12). In all cases where a trust is sought to be implied, the court may hear parol evidence of the nature of the transaction, or the circumstances, or the conduct of the parties, either to imply or rebut a trust. § 108-108. Accordingly, the fact that the plaintiff alleged that a certain oral agreement was made between him and Mrs. Guffin and Mrs. Kay, at the time of such conveyance to the latter, did not render the petition defective as seeking to enforce an express trust by parol. If from all the facts and circumstances an implied trust is otherwise established, it is not destroyed by the express verbal agreement which may have constituted a part of the transaction. The express agreement may be shown, not as fixing the interest to be owned by the parties, but as rebutting the inference of a gift by the plaintiff. Jackson v. Jackson, 150 Ga. 544 (104 S.E. 236); Romano v. Finley, 172 Ga. 366 (2) (157 S.E. 669);Hemphill v. Hemphill, 176 Ga. 585, 590 (168 S.E. 878). Implied trusts are not within the statute of frauds, and the court may hear parol evidence showing the facts from which they are sought to be implied. Poulet v. Johnson, 25 Ga. 403,411; Alexander v. Alexander, *Page 887 46 Ga. 283; Stern v. Howell, 160 Ga. 261, 266 (127 S.E. 776). Nor in such cases must the allegations and proof conform to the parol-evidence rule, as stated in the Code, § 38-501.Jenkins v. Lane, 154 Ga. 454 (3, a) (115 S.E. 126). In such a case, the party seeking relief may pray simply for a decree establishing title in him; but it is not inappropriate to ask for a decree to compel a conveyance as in a case of specific performance. See McKinney v. Burns, 31 Ga. 295; Holmes v.Holmes, 106 Ga. 858 (33 S.E. 216); Peterson v. Hicks,43 Wn. 412 (86 P. 634); Hardman v. Ryan, 106 Wn. 433 (180 P. 142); 58 C. J. 1276, § 632; 65 C. J. 997, § 925. An implied trust is necessarily based upon an implied contract, — implied either in fact or in law. Jackson v. Jackson, Hemphill v.Hemphill, supra and cit. In this case the prayers for specific performance, cancellation, and general relief constituted sufficient basis for a decree of title in the plaintiff, on the theory of implied trust, where the allegations of fact themselves stated a cause of action for such relief.
Counsel for the defendant in error cite and rely on Shaprio v. Steinberg, 175 Ga. 869 (166 S.E. 767), in which it was held that where children conveyed their interests in real estate to their mother, a widow, on an oral agreement that in case of her remarriage she would reconvey the property to them, and where the mother afterwards remarried but refused to make such reconveyance, equity would enforce the agreement as an exception to the statute of frauds, the children having performed their part of the contract by conveying the property to their mother. That being a unanimous decision, it would as it stands be controlling here as to the statute of frauds, but it seems to be in conflict with some other authorities; and so we have concluded to examine the present case from a different angle. Whether the decision is sound or unsound, it would in no wise prevent a recovery in the present case, based on the theory of implied trust. With further reference to the question there dealt with, see Robson v. Harwell, 6 Ga. 589, including dissenting opinion by Warner, J.; Chambers v. Butcher, 82 Ind. 508; Haussman v. Burnham, 59 Conn. 117 (22 A. 1065, 21 Am. St. R. 74); 25 R. C. L. 136, § 135; 27 C. J. 207, § 165; 39 L.R.A. (N.S.) 928, note. The Shaprio case was again before this court (Shapiro v. Steinberg, 179 Ga. 18, 175 S.E. 1), where the decision went off on a different question. Under all *Page 888 the allegations, the petition was not defective because it showed that the plaintiff joined with Mrs. Guffin in executing the deed to Mrs. Kay. McKinney v. Burns, supra; Chandler v. GeorgiaChemical Works, 182 Ga. 419 (185 S.E. 787).
It is further contended that the final marriage of the plaintiff himself did not entitle him to recover, because marriage is not such part performance of a parol agreement, made on consideration of marriage, as would take the case out of the statute of frauds. See Code, § 20-401 (3). There is no merit in this contention, for the reason that the alleged agreement of the parties, made at the time of the conveyance to Mrs. Kay, was not based upon any such consideration, the plaintiff's possible future marriage being stated only as an event upon which the property would be conveyed to him. As we have seen above, the agreement is pertinent only as showing an implied trust, and not as constituting within itself an enforceable obligation. Under the allegations, the plaintiff had a complete equity in the land, and was entitled to recover, irrespective of his subsequent marriage. Accordingly, the petition stated a cause of action against both defendants, and the court did not err in overruling the oral motion to dismiss.
2. The plaintiffs in error complain next of the refusal to grant a nonsuit; but they assign error also on the overruling of their motion for new trial, containing the grounds that the verdict was contrary to evidence and without evidence to support it. An exception based on a refusal to grant a nonsuit will not be considered, if the case is submitted to the jury, and, after a verdict for the plaintiff, the defendant in a motion for new trial presents the contention that the verdict is contrary to the evidence and without evidence to support it. Foremost DairyProducts Inc. v. Sawyer, 185 Ga. 702 (5), 716 (196 S.E. 436); Henderson v. Maysville Guano Co., 15 Ga. App. 69 (82 S.E. 588); Atlantic Coast Line R. Co. v. Blalock, 8 Ga. App. 44 (2) (68 S.E. 743); Trapnell v. Bird, 21 Ga. App. 21 (93 S.E. 498), and cit. Accordingly, we pass over the exceptions relating to the refusal of a nonsuit, and consider under the motion for a new trial, whether the verdict was sustained by the evidence.
3. Although the evidence was in sharp conflict on most of the issues presented by the petition and the answers, the plaintiff's testimony, if believed by the jury, supported the material allegations *Page 889 of his petition as amended, and was sufficient to authorize a recovery, unless it be otherwise because his testimony further showed that at the time he entered into the engagement with Mrs. Guffin he had a living wife, from whom he was living separate and apart, and from whom he was not divorced until some time in the year 1938. It appears from the record that he obtained the divorce more than a year before the transaction with Mrs. Kay. Counsel for the plaintiffs in error cite a number of decisions to the effect that a promise of marriage by a married person is contrary to public policy, and will not be enforced by the courts. Davis v. Pryor, 112 Fed 274; Carter v. Rinker, 174 Fed. 882; Smith v. Hall, 69 Conn. 651 (38 A. 386); Eve v. Rogers, 12 Ind. App. 623 (40 N.E. 25); Kerns v. Hagenbuchle, 17 N.Y. Supp. 367; Johnson v. Iss, 114 Tenn. 114 (85 S.W. 79); Leaman v. Thompson, 43 Wn. 579 (86 P. 926); Williamsv. Ingel, 116 N.Y. Supp. 778. See 11 C. J. S. 772, § 2; 8 Am.Jur. 848, § 4. The rule thus invoked would not preclude a recovery in the present case; and this is true, regardless of whether that part of the Code, § 48-108, as to a gift for anillegal purpose would permit a recovery if the property had not been conveyed to the mother, Mrs. Kay, and Mrs. Guffin alone had been sued. Cf. Code, § 48-109; Schultz v. Duitz (Ky.), 92 A.L.R. 600. Mrs. Guffin did convey the property to Mrs. Kay, and the substantial controversy is between the plaintiff and the latter. While the law will not ordinarily lend its aid to one of the parties to an illegal contract or transaction, this principle could not be applied in favor of Mrs. Kay, if, as testified by the plaintiff, the property was deeded to her by Mrs. Guffin and the plaintiff, to be later reconveyed by Mrs. Kay to the plaintiff. Chappell v. Stapleton, 58 Ga. App. 138 (198 S.E. 109); McBlair v. Gibbes, 17 How. 232, 235 (15 L. ed. 132), and cit.; Matta v. Katsoulas, 192 Wis. 212 (212 N.W. 261, 50 A.L.R. 293, note); 12 Am. Jur. 720, § 211, and cit.; 17 C. J. S. 671, § 283; 28 L.R.A. (N.S.) 996, note and cit. Whether or not the plaintiff was entitled to the relief of cancellation, which appears to have been granted by the decree but not by the verdict, neither Mrs. Guffin nor Mrs. Kay was harmed by the grant of any such relief, Mrs. Guffin having conveyed all her title and interest to Mrs. Kay, and the essential issue as between the plaintiff and Mrs. Kay being whether she held the property under an implied trust. *Page 890
It appeared from the evidence that the deeds by the plaintiff and Mrs. Guffin to Mrs. Kay recited, as to Mrs. Guffin, that it was made "in consideration of love and affection and to provide a home for the grantee," as "a gift by me [Mrs. Guffin] to her," and that as to the plaintiff it was made "in consideration of one dollar and other valuable consideration." The plaintiff testified that as to him the deed was without any consideration whatever following from Mrs. Kay. As to each of the grantors, the deed itself shows that the consideration was stated merely by way of recital. Consequently the plaintiff's evidence as to the whole transaction, including consideration, did not violate the parol evidence rule. In this respect, the case differs from Shaprio v. Steinberg, supra. Accordingly, the court did not err in overruling the motion for new trial on the general grounds relating to the plaintiff's action.
4. Nor do we find merit in any of the special grounds of the motion relating to the main action. The charges on specific performance of a parol agreement were harmless, if inapplicable. This is true for the reason that if the jury found for the plaintiff on the essential issues as charged, the plaintiff was entitled to a decree of the title in him as against the defendants, without enforcement of such parol agreement; and the verdict merely found that such title be decreed in him, making no reference to specific performance. Nor were the defendants harmed by the charge on cancellation. See reference to this subject in the preceding division. The excerpts complained of as failing to state or recognize the defendants' contentions are not subject to the criticisms lodged against them, since in other portions of the charge the contentions of the defendants were substantially stated.
With further reference to the main action, let it be said that the theory of implied trust may not have been expressly urged in the trial court, as it has not been in this court; still it is a well recognized rule that if a judgment is right for any reason it should be affirmed. Hill v. Smith, 157 Ga. 210, 212 (121 S.E. 214); Coker v. Atlanta, 186 Ga. 473, 475 (198 S.E. 74), and cit.; Citizens Southern Bank v. Union WarehouseCo., 157 Ga. 434 (6, b) (122 S.E. 327); Crittenden v.Southern Home Building Loan Asso., 111 Ga. 266 (5) (36 S.E. 643). Regarding the above quoted Code provision on the subject of gifts (§ 48-108), we may observe that this provision appeared in the first official Code (1863, *Page 891 § 2625), and has likewise appeared in all subsequent Codes. Although the present case seems to be the first occasion for its application by this court, it fits the case almost as perfectly as if made for it, so far as the alleged gift is concerned. We learn from law writers that it came from the mind of Thomas R. R. Cobb, one of the codifiers of the first Code. Of him it was said by Chief Justice Simmons that he was the greatest lawyer Georgia ever produced, and one who, the Chief Justice thought, was without a superior in any other State. See History of the First Georgia Code by Judge Richard H. Clark, Georgia Bar Association Report, 1890; Brown v. Brown, 184 Ga. 827, 830 (193 S.E. 754); opinion by Chief Justice Simmons, in Bradley v. State,111 Ga. 168, 173 (36 S.E. 630, 59 L.R.A. 691, 78 Am. St. R. 157).
5. In reference to the cross-action filed by Mrs. Guffin, on conflicting evidence the verdict in favor of the plaintiff and against her was authorized. As to this cross-action, the court gave a charge which is complained of on the ground that it failed to instruct the jury from what date they might compute interest in the event they found the defendant entitled to recover. Even if the judge may have erred in this respect, the error was harmless, since the jury did not find in the defendant's favor even as to principal. See Howard v. Georgia Ry. c. Co.,35 Ga. App. 273 (2, 3) (133 S.E. 57); Trammell v. AtlantaCoach Co., 51 Ga. App. 705, 706 (181 S.E. 315), and cit. The same charge was also assigned as error upon the ground, that, after stating conditions under which the defendant would be entitled to recover, the charge went on to say that if "she is otherwise entitled to recover she would be entitled to recover the full sum" with interest. It is contended that the use of the words "otherwise entitled to recover" required the defendant to prove something that was not necessary, and something that was not even stated in the charge as an element of her case; also that such charge was confusing and prejudicial. Under the facts of the record and in view of the entire charge, this ground does not show cause for a reversal.
6. The court did not err in overruling the motion for new trial.
Judgment affirmed. All the Justices concur, except