Mrs. Brown, by warranty deed absolute in terms, expressing a consideration of $2,400 in hand paid, conveyed to Doane in fee simple, as one tract containing 60 acres more or less, parts of land lots Nos. 94 and 99 in the 14th district of Pulton county. Doane at the same time delivered to her his written obligation reciting that he had purchased her home plantation near Hapeville, to which she had made him a deed, and proceeding as follows:
“I hereby agree and bind myself to pay to Mrs. Sudie C. Brown the sum of $200 without interest, whenever she produces and places in my hands a good chain of title in fee simple from plat and grant down and into Mrs. Sudie C. Brown of the five acres of land on land lot number 94 . . which is embraced in said Mrs. Sudie C. Brown’s deed to me. This note is not to be transferred to any one, and to be paid only when the *36conditions for which said note is given are strictly complied with.”
This sum of $200 added to $2,200 actually paid would be requisite to make up the amount expressed in the deed as the consideration. The parties differing as to the sufficiency of the chain of title which Mrs. Brown afterwards presented to Doane, and he refusing to accept the same, and also refusing to pay the balance of the purchase money or to surrender the five acres of land, she filed her petition in the nature of a bill in equity, to compel him to do one or the other of these things. She alleged in her petition as amended, in substance, that before and at the time the deed was executed, he promised and agreed that he would restore to her the five acres of land (of which at the time of the conveyance he had obtained possession as a part of the tract), in case she could not produce the chain of title described in his obligation. The case coming on for trial, and some of her evidence being introduced, and more offered but excluded, she proposed to still further amend the petition by adding the following in substance:
“Petitioner avers that at the time of and before the deed from herself to Doane was made, he promised and agreed to return the five acres in land lot 94, in case it developed that petitioner could not procure a plat and grant from the State down. On the faith of said agreement to return back the five acres in case it turned out, after a reasonable search, that petitioner had no plat and grant from the State down, petitioner made the deed to said five acres together with the other fifty-five acres, and she would not have made such deed except on the faith of said agreement. The five acres was not paid for and has never been. The contract as to the five acres was separate and distinct from the sale of the 55 acres. Petitioner has made every effort to obtain such title, but as it was not in existence, she was not able to find it. Defendant, though requested, failed to return the land. The promise and failure to return the *37land constitute a fraud on the part of defendant, whose original design was fraudulent. Said original representation was made with intent to induce petitioner to make such absolute conveyance, and with the intention of holding said laud after such conveyance was made. Petitioner further avers that the deed and note constitute an ambiguous contract, and that the parol agreement was, that in case she could not, after a reasonable search, obtain the required title, the land was to be returned and conveyed back to her. She-avers that she retained the beneficial interest in the land, and.prays that a resulting trust and a conveyance to her be decreed.”
The amendment was disallowed, and the plaintiff offering no more evidence, the court granted a nonsuit. Por a more enlarged statement of the facts, see the official report. •
1. The bill of exceptions assigns several errors, but at this stage of the proceedings, it is necessary for us to' deal specifically with only one of the assignments. We think the court erred in disallowing the amendment, and consequently that the trial was conducted throughout on a misapprehension of the law applicable to the case. The amendment alleges that the. purchase of the five acres was made by a separate contract, and that ■this part of the tract was included in the deed by reason of Doaue’s promise and undertaking to restore it if the plaintiff could not produce the title papers stipulated for, and that he made the promise to induce the plaintiff to execute such absolute conveyance and with the intention of holding the land after such conveyance was made. This virtually charges him with actual fraud and deceit, not only in violating the parol promise relied upon, but in making the same. If he procured the conveyance of these five acres by means of a wilful and intentional fraud, equity will lay hold of his conscience and compel him to perform his promise, notwithstanding it was made orally and never reduced to *38writing. There is no law which requires a fraudulent undertaking to be manifested by writing. Those who use promises, which they make deceitfully, for the purpose of accomplishing fraudulent designs, are generally careful not to furnish written evidence of their turpitude. Such promises, whatever may be their terms, do not, unless reduced to writing, raise express trusts, but the law, acting upon them according to their nature, makes them a basis upon which to build up in favor of the defrauded party an implied or constructive trust. Code, §§3194, 2316, par. 2. “ A second well-settled and even common form of trusts ex maleficio occurs whenever a person acquires the legal title to land or other property by means of an intentionally false and fraudulent verbal promise to hold the same for a certain specified purpose, as for example a promise to convey the land to a designated individual, or to reconvey it to the grantor, or the like, and having thus fraudulently obtained the title, he retains, uses and claims the property as absolutely his own, so that the whole transaction by means of which the ownership is obtained, is in fact a scheme of actual deceit. Equity regards such a person as holding the property charged with a constructive trust, and will compel him to fulfil the trust by conveying according to his engagement.” 2. Pomeroy’s Eq. Jur. §1055. “ In order that the doctrine of trusts ex maleficio with respect to land may be enforced under any circumstances, there must be something more than a mere verbal promise, however unequivocal, otherwise the statute of frauds would be virtually abrogated; there must be an element of positive fraud accompanying the promise, and by means of which the acquisition of the legal title is wrongfully consummated.” Id. §1656. The distinction between making a promise with intention to break it and a mere breach of a promise not fraudulent in itself, is well brought out by the cases ot *39Manning v. Pippen, 86 Ala. 357, and Brock v. Brock (Ala.), 8 So. Rep. 11, read in connection with Patton v. Beecher, 62 Ala. 579. Nothing contrary to the principle of these authorities was cited in the argument. The case of Stillman v. Canales, 25 Tex. 313, 78 Am. Dec. 530, read by the learned counsel for defendant, was an action at law for the purchase money and involved no question as to the effect of fraud committed at the time of passing the legal title. The same may be said of Runkle v. Johnson, 30 Ill. 328, 83 Am. Dec. 191, and Hall v. McArthur, 82 Ga. 572. Nor was there any question of fraud involved in Gilbert v. Peteler, 38 N. Y. 175, 97 Am. Dec. 785.
2. The petition and amendments proceeded upon a construction of the obligation of Doane to pay the |200, which may or may not be correct. The terms “whenever she produces and places in my hands a good chain of title in fee simple from plat and grant down and into Mrs. Sadie C. Brown,” seem to us ambiguous. The plaintifi construes them as not contemplating anything to be done on her part to procure such a title, but only to discover and produce it in case it was already in existence when this transaction took place. Should this construction prove incorrect, it may be that, even if a fraud upon her was designed in the beginning, she could not rightfully reclaim these five acres of land until she had made diligent and faithful effort, without success, to procure and produce such a title, though it may not be yet in existence. We doubt not that, under the provisions of our Code, §§2757, 3801, extrinsic evidence would be receivable to aid the court and jury in arriving at the true meaning of this ambiguous language. Masons v. Deese, 30 Ga. 308; Barrett v. Powell, 63 Ga. 552.
The court erred in disallowing the amendment, and consequently in granting a nonsuit.
Judgment reversed.