I dissent from the first headnote and the corresponding division of the opinion, as I do not think that the facts alleged are sufficient to establish an implied trust. Other than the parol agreement there appears no allegation of any fact or circumstance sufficient to be the equivalent of an implied contract which would authorize the establishment of an implied trust. There is no allegation of inceptive fraud, and the allegations show that possession was given to the grantee. The majority opinion cites much law relating generally to implied trusts, but in each case cited there is some fact or circumstance over and beyond the parol agreement which authorizes the creation of an implied trust. In its last analysis the majority opinion is predicated on Pittman v. Pittman, 196 Ga. 397, which in turn is based on McKinney v. Burns, 31 Ga. 295. Each of those cases holds that an implied trust was created by reason of the fact that there was no consideration for the deed; yet, in the instant case, there was a consideration for the deed, as the deed from the father to the son recites a consideration of $4500 and an assumption of the outstanding loans, and the petition also alleges that the son subsequently executed a note for the sum of $3000 secured by the land.
The facts alleged amount to no more than an attempt to assert an express trust by parol and engraft it on a deed, which cannot be done. See Jones v. Jones, 196 Ga. 492, and citations. Where there is an attempt to create an express trust by parol and engraft it on a deed, which is prohibited under the Code, § 108-105, the fact that it fails as an express trust does not ipso facto establish an implied trust.