1. The evidence here showing that the land involved was deeded by the grantor to his son upon the sole agreement that the grantee was to hold the record title subject to the rights of the grantor and his wife to use and occupy the land and to receive the rents and profits therefrom while they or either of them should remain in life, an implied resulting trust was thereby created in favor of the grantor and his wife, and the subsequent execution and delivery of an absolute deed to his sister by the grantee, without an express reservation of the rights of the grantor and his wife, was a fraud upon them.
(a) Where such grantor and his wife remained in the exclusive possession of the land under such reserved right as the consideration for the deed to the son, although the possession was in law presumptively the possession of the husband, such possession was sufficient to put a purchaser upon inquiry as to how and why the husband held possession. and since the evidence did not show that he had represented or done anything to indicate that the possession was exclusively in him, such inquiry would presumably have led his remote grantee to a discovery that the possession was really that of himself and his wife jointly under an equal claim of right; and, in the absence of an investigation, she could not be said to be an innocent purchaser, and she took title to the land subject to the trust impressed by law.
(b) The fourth headnote in Neal v. Perkerson, 61 Ga. 345, that, "Joint residence of husband and wife on realty does not give notice of any claim of interest in it by the wife," is broader than the facts of the case and the opinion authorize, the decision holding properly construed, only that such joint residence upon realty does not give notice of a secret equity of the wife therein to one dealing with the husband upon the representation and belief that the land belonged to him.
(c) Where title to the land in question devolved by inheritance upon the husband of the remote grantee charged with notice of the trust impressed by law in favor of the claimants, and the administrator of his estate applied for and the ordinary granted permission to sell the land for the payment of the debts of the intestate and to make distribution. and the husband and wife in possession interposed their claim in and to the land, the jury was authorized to find under the law and the evidence in favor of the claimants, and the court did not err in overruling the general grounds of the defendant's motion for new trial. *Page 764
2. The interest of a witness in a suit does not disqualify him, though his credibility would be a matter for the jury's determination.
3. The testimony of the witness not relating to any transactions with the defendant administrator's intestate, he was not incompetent to testify as to transactions regarding the land involved prior to the time when the title thereto devolved upon the intestate by inheritance.
4. The excerpt from the charge complained of, properly construed, was only a statement of the contentions of the claimants, and was not error for any reason assigned.
5. Where the claimants relied upon an implied trust in connection with the execution and delivery of a deed to land, the court did not err in stating to the jury a contention of the claimants, as expressed in their petition, that they "say that they are in equity and good conscience entitled to the possession and occupancy of the said lands and the rents and profits thereof so long as they or either of them remain in life."
6. The evidence demanding a finding as a matter of law in favor of the competency of a certain witness, and such determination being for the court and not the jury, the submission to the jury of that question was not harmful error as against the defendant, but was favorable to him.
No. 15040. JANUARY 6, 1945. W. A. Hall, as administrator of the estate of J. G. Edwards, deceased, made an application to the court of ordinary of Early County, Georgia, to sell certain real estate of the estate for the purpose of paying debts of the intestate and making distribution. Citation issued, and after publication as required by law the application to sell was granted. Before the property was sold J. B. Turner and his wife, Mrs. J. B. Turner, filed a claim to described 50 acres of the land to be sold. It was alleged that J. B. Turner, on February 22, 1930, while holding the legal title to the described 50 acres of land and in actual possession of the same, conveyed it to his son, B. J. Turner, by deed which was duly recorded. On January 1, 1928, J. B. Turner executed to Federal Land Bank of Columbia a security deed conveying the property as security for a loan made by the bank to him. The only consideration for the deed from J. B. Turner to B. J. Turner was an agreement by B. J. Turner that Mr. and Mrs. J. B. Turner should have the right to occupy the premises, live in the dwelling house thereon, and use the said land and receive the rents, issues, and profits therefrom so long as they or either of them should live, and that B. J. Turner would pay to the bank the outstanding loan. *Page 765 J. B. Turner and his wife lived upon the said 50 acres at the time of the agreement, using the same as their own, and have continued so to do, receiving their support and maintenance therefrom. On October 2, 1934, B. J. Turner conveyed the said land to his sister, Bessie Turner, by deed duly recorded. At the time of this conveyance, Mr. and Mrs. J. B. Turner were occupying the land and B. J. Turner fully advised Bessie Turner of the aforesaid agreement, and she agreed to carry out the same and to assume and pay the balance of the loan due the Federal Land Bank of Columbia. She continued to execute this agreement in all of its terms until her death in November, 1942. The said administrator on the estate of J. G. Edwards bases his claim of right to sell the land upon the contention that his intestate was the sole heir at law of Bessie Turner. Upon the facts above alleged the claimants assert that they are in equity and good conscience entitled to the possession, use, and occupancy of the said 50 acres of land and the rents and profits therefrom so long as they or either of them remain in life.
The evidence on the trial of the claim was substantially as follows: B. J. Turner, son of Mr. and Mrs. J. B. Turner, purchased the 50 acres of land in 1917 or 1918 from H. B. Paul for $1500 as a home for his parents, Mr. and Mrs. J. B. Turner, title being taken in his name. Later he removed to Florida, and to enable a loan to be obtained on the property, out of which to pay the balance of the purchase-price, he deeded it to his father, J. B. Turner, who obtained a loan from Federal Land Bank of Columbia. On February 22, 1930, J. B. Turner conveyed the land by warranty deed to B. J. Turner for a recited consideration of $1600, the deed containing no reservations, conditions, or exceptions. It was agreed orally between the parties that J. B. Turner and his wife should have the right to occupy the premises so long as they or either of them should live, to have the use of the same and the rents and profits therefrom. B. J. Turner testified that the consideration named in the deed was only by way of recital, and that the real consideration was that above named and the further obligation upon him to pay off the balance due on the loan from the bank. In October, 1934, B. J. Turner, for a consideration of $1500, conveyed the property to his sister, Bessie Turner; and he testified that she knew about the agreement for their parents to enjoy the use of the property and receive the rents and profits *Page 766 therefrom so long as they or either of them should live, and that she agreed to pay the balance due the bank. He testified that his parents had been living on the land since 1917 or 1918; that J. B. Turner farmed the land as long as he was able, and, after he got to where he could not work the whole place, he rented out part of it, and he and his wife continued to live there. The deed to his sister, Bessie Turner, was made while she was living in Jacksonville, Florida, and about four years later she married J. G. Edwards. She and her husband came to the home and made valuable improvements, remodeled the house, dug a deep well, had the house wired for electricity, and furnished it quite nicely. They lived there off and on, sometimes at Jacksonville and sometimes there. That was their home in Early County and they owned the property. Mr. and Mrs. J. B. Turner were in the house at all times. They had a room there in the house. His sister did not furnish the whole house, just furnished one room, he thought. Mr. and Mrs. Edwards put in an electric stove and refrigerator, had a very beautiful kitchen, and Mr. and Mrs. Turner occupied a bedroom. The cooking was done in the kitchen. There was just one kitchen. The eating was done in the dining room and there was just one. There was a living room in the house and his parents used that, sat on the porch, drank water from the well, and ate fruit from the trees around them. Mr. and Mrs. Edwards also lived in the house, slept in the beds, drank water from the well, cooked on the cooking apparatus, and ate on the table. It was a joint occupancy. At the time he executed the deed to his sister, his father and mother were living on the 50 acres and living there alone. After his sister bought the land, she and her husband moved there and improved the land and returned it for taxes and paid the taxes.
W. A. Hall testified that, as administrator of the estate of J. G. Edwards, he went to the house where the Turners lived and was assisted by them in taking inventory, omitting such items as they claimed belonged to them. He rented the place for 1943 to a Mr. Whitehurst, son-in-law of Mrs. Turner, and Whitehurst paid the rent to him as administrator. As to the year 1944, Mr. and Mrs. Turner filed their claim and said that if they lost their suit they would pay him rent. Neither J. B. Turner nor Mrs. Turner told him under what conditions they were living on the place, and, when he went there to make the inventory, they made no such *Page 767 claim as has since been made. They said they wanted to buy the place. Both Mr. and Mrs. Edwards are dead. Mr. Edwards lived about two days after Mrs. Edwards died. From the witness's investigation after the death of Mrs. Edwards, she did not owe any debts that he knew of. Mr. Edwards owed about $1000. They had no children. They lived together on the place an husband and wife. The witness found Mr. and Mrs. J. B. Turner living in the house when he went there to take charge. They were not the only ones living there. There were several sons-in-law there then, but they are not there now. They farmed there in 1943.
In evidence were the deeds hereinbefore referred to; a plain warranty deed, without reservations or exceptions, from J. B. Turner to B. J. Turner, dated February 22, 1930, duly recorded; and a plain warranty deed from B. J. Turner to Bessie Turner, without reservations or exceptions, dated October 2, 1934, and duly recorded.
The jury returned a verdict in favor of the claimants. The defendant filed a motion for new trial and by amendment added several special grounds. The court overruled the motion, and the exception here is to that judgment. (After stating the foregoing facts.) 1. The facts of the present case do not show an instance where land was conveyed to one who entered into possession with the record title in his name, and where, as contended by the plaintiff in error, the terms of a plain, unambiguous deed can not be varied or contradicted by parol evidence. Where, as here, an implied trust is sought to be shown by such evidence against one who is not in possession, the provisions of the Code, § 38-501, that "Parol contemporaneous evidence is inadmissible generally to contradict or vary the terms of a valid written instrument," have no application. Guffin v. Kelly, 191 Ga. 880, 885 (14 S.E.2d 50). "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 conduct of the parties, either to imply or rebut a trust." Code, § 108-108. "A deed absolute in form may be shown by parol evidence to have been made in trust for the benefit of the grantor, where the maker remains in possession of the land." Chandler v. Georgia Chemical Works, 182 Ga. 419 (185 S.E. 787, *Page 768 105 A.L.R. 837). The claimants base their right in and to the land sought to be sold by the defendant administrator upon an implied trust, showing by testimony of their son, B. J. Turner, that when J. B. Turner conveyed the land to him, the consideration, although expressed in the deed as $1500, was in fact the right of the grantor and his wife to use and occupy the property and receive the rents and profits therefrom while they or either of them should remain in life. Since the deed did not specifically make the payment of the $1500 an essential condition, but the named consideration was merely by way of recital, this testimony was properly admissible without violating the parol evidence rule in the above-cited Code section.Wellmaker v. Wheatley, 123 Ga. 201, 203 (2) (51 S.E. 436);Young v. Young, 150 Ga. 515, 517 (104 S.E. 149). "While an express trust must be created by writing, and cannot be proved by parol, implied trusts may be established by parol evidence, although the effect of such evidence is to alter or vary a written instrument, and although the defendant sets up and insists upon the statute of frauds." Jenkins v. Lane,154 Ga. 454 (3 a) (115 S.E. 126). See also Jansen v. Jansen,180 Ga. 318, 321 (178 S.E. 654); Sykes v. Reeves,195 Ga. 587, 590 (24 S.E.2d 688). "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." Code, § 108-106. An implied trust is sometimes more particularly a resulting trust. "An implied trust is sometimes for the benefit of the grantor, or his heirs, or heirs or next of kin of a testator, and is then a resulting trust." § 108-110. Such in effect is the trust here relied upon, since the right claimed was for the benefit of the grantor and his wife, to use and occupy the land and receive the rents and profits therefrom while they or either of them should live. The agreement testified to was, it is true, an express verbal one, but a trust arising under the circumstances named is not destroyed merely because it can not be enforced as an express trust required to be in writing, and upon equitable principles will be enforced as an implied resulting trust. Jackson v. Jackson, 150 Ga. 544, 549 (104 S.E. 236);McDonald v. Dabney, 161 Ga. 711, 731 (132 S.E. 547) ;Romano v. Finley, 172 Ga. 366 (157 S.E. 669) ; Hemphill v. Hemphill, 176 Ga. 585, 590 (168 S.E. 878) ; Allen v.Allen, 196 Ga. 736, 745 (27 S.E.2d 679). *Page 769
The evidence being undisputed that the grantee, B. J. Turner, held the title subject to the rights claimed by J. B. Turner, the grantor, and his wife, an implied resulting trust was thereby created in their favor. Hence, any transfer of this title, held exclusively for the benefit of the claimants during their lives would, without providing in the deed to another that the conveyance was subject to their rights, be a fraud upon them. B. J. Turner subsequently conveyed the land by absolute deed to his sister, Bessie Turner, and the question arises whether or not she was bound by the agreement made for the benefit of the parents, or was an innocent purchaser, and consequently the administrator's intestate, whom she had married after the execution of the deed to her, held the title free from any right of the claimants. B. J. Turner testified that when he conveyed to her for the recited consideration of $1500 and the further agreement on her part that she would pay off an outstanding loan in favor of Federal Land Bank of Columbia, she knew about the conditions under which the parents were living on the property, but this testimony was not tantamount to showing that she had agreed to such use and enjoyment. Nevertheless, it is fundamental law that "Possession of land is notice of whatever right or title the occupant has" (Code, § 85-408) ; and that "Notice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found such inquiry might have led. Ignorance of a fact, due to negligence, shall be equivalent to knowledge, in fixing the rights of parties." Code, § 37-116. These principles of law have been expounded in innumerable decisions of this court. The claimants were jointly in actual possession of the land when B. J. Turner in October, 1934, conveyed to Bessie Turner, and they had been in such possession since the land was purchased by B. J. Turner from H. B. Paul in 1917 or 1918, after which it was conveyed to J. B. Turner, who on February 22, 1930, by duly recorded deed conveyed back to B. J. Turner. The right here claimed is not only on behalf of J. B. Turner but also on behalf of his wife. While the title was in J. B. Turner when he conveyed to B. J. Turner in 1930, and, presumptively as to a purchaser, the possession was in him alone as the husband, such presumption is rebuttable. Code, § 85-408 ; Grantham v. Wester, 136 Ga. 17 (70 S.E. 790) ;Mercer v. Morgan, 136 Ga. 632 (2) (71 S.E. 1075). *Page 770 The possession of the husband himself was sufficient to put Bessie Turner upon inquiry as to how and why he held possession. Such an inquiry might and doubtless would, since the husband is not shown to have represented or done anything to indicate that the possession was exclusively in him, have led her to the discovery that the possession, presumptively in him, was really that of himself and his wife jointly under a claim of equal right. Walker v. Neil, 117 Ga. 733, 745 (45 S.E. 387). As stated in the Walker case : "While the rule, as ordinarily stated, is that possession of land is notice of whatever title or interest therein the possessor has, we think that the real principle applicable in such a case is broader than this. The principle upon which the rule is founded is, that adverse possession of land is notice of whatever facts in reference to the title would be developed by inquiry of the person in possession, the presumption being that inquiry of him will disclose how, or under what right, he holds possession, and therefore lead to the discovery of the real adverse holder, whether himself or another for whom he holds possession. . . Possession by anybody adverse to the person offering to sell is sufficient to put the prospective purchaser upon notice of whatever inquiry of the occupant of the premises will develop ; and in the absence of such an inquiry, the presumption is, that, had it been made, the right, title, or interest under which the possessor held would have been discovered." In Neal v.Perkerson, 61 Ga. 345 (supra), it was stated in the 4th headnote that "Joint residence of husband and wife on realty does not give notice of any claim of interest in it by the wife." This headnote was, as stated in Austin v. Southern Home Assn.,122 Ga. 439, 447 (50 S.E. 382), written by the reporter of the court, and, as shown by Mr. Justice Fish in Walker v. Neil, supra, was broader than the facts of the case authorized; and "if considered apart from the case which was before the court, would sustain the contention of counsel in the present case ; but when considered in connection with the facts which were before the court, it will be found that the decision in that case, properly construed, simply means that joint residence of husband and wife upon realty does not give notice of a secret equity of the wife therein, to one dealing with the husband upon therepresentation and belief that the land belongs to him." (Italics ours.) The facts of this case do not bring it within the general rule applicable where one is in *Page 771 possession with the record title in his name and which, inMcDonald v. Dabney, supra, is stated as follows: "If, of two occupants, one has the record title, a purchaser has the right to assume that the other has no title." Here the husband held no record title at the time Bessie Turner purchased from B. J. Turner, and he made no representation as to exclusive rights in himself. Hence the wife was equally entitled to prosecute the claim to the use and occupancy of the land jointly with the husband and to participate in the rents and profits therefrom.
But it is contended by the plaintiff in error that, under the testimony of B. J. Turner, the possession was joint with that of the intestate and his wife, formerly Bessie Turner, and hence did not constitute sufficient notice of the claim of the parents, since the possession must not only be open and visible but must be exclusive and unambiguous in nature. There was no testimony as to such alleged mixed possession at the time B. J. Turner conveyed to his sister, Bessie Turner, who subsequently married the intestate, J. G. Edwards. The evidence does show that after the execution of the deed to her, and after her marriage to Edwards, they lived part of the time in Early County, Georgia, and part of the time in Jacksonville, Florida, and that when in Early County they lived in the home with the claimants and made valuable improvements therein. All ate in the same dining room, and cooking was done in the same kitchen. The parents sat on the porch, used the living room, drank water from the well, slept in the house, and ate fruit from trees. It was only after such a description of occupancy as to manner and time that the witness used the expression, "It was a joint occupancy;" and certainly the jury was not required to interpret the expression as implying any occupancy by Mr. and Mrs. Edwards at the time of the conveyance to her as Bessie Turner in October, 1934. Nor was the jury required to construe the presence of Mr. and Mrs. Edwards in the home other than as a natural arrangement between relatives without any contention on their part that such residence was intended as a contest to the adverse possession of Mr. and Mrs. Turner as existing at the time of the conveyance by them to B. J. Turner and when he conveyed to Bessie Turner. There is nothing in the evidence to indicate any disclaimer, during such residence as described, that Mr. and Mrs. Turner were still the rightful occupants, and that the presence of Mr. and Mrs. Edwards was otherwise than permissive. While it *Page 772 is shown that Mrs. Edwards returned the land for taxes and paid the taxes as the holder of the record title, this evidenced merely the discharge of a duty that rested upon her. The administrator testified that in 1943 he rented the land to one Whitehurst, son-in-law of Mrs. Turner, who paid the rent to him; but it was not affirmatively shown that Whitehurst ever occupied the premises, and the testimony of B. J. Turner was that J. B. Turner farmed the land as long as he was able and then rented out part of it and he and his wife continued to live there. They were still in possession when the defendant administrator went to the premises to make an inventory of the personal property belonging to his intestate. He testified that they did not inform him under what conditions they were there ; but as it does not appear that he questioned their rights, their silence can not be said to defeat the bona fides of their claim.
For the reasons above shown, the jury was authorized to find from the evidence that Mr. and Mrs. Turner were at all times in adverse possession of the land under their bona fide claim of right, and that they did nothing to indicate any disclaimer of such right in and to the premises. Under the authorities above cited, Bessie Edwards was, at the time of her purchase, charged with notice of such claim, and the jury was authorized to find that she was not an innocent purchaser; that J. G. Edwards, as her sole heir, took the title to the land by inheritance, subject to the trust impressed by law in favor of the claimants. The verdict in favor of the claimants being authorized under the law and the evidence, the court did not err in overruling the general grounds of the defendant's motion for new trial.
2. Special ground 1 complains that the court erred in permitting the witness B. J. Turner, over objection of the movant, to testify on behalf of the claimants, it being contended that he was an incompetent witness for the reason that he was interested in the result of the suit because of his obligation to the claimants. This contention is obviously without merit, since the interest of the witness would not disqualify him, though his credibility would be a matter for determination by the jury.
3. Special ground 2 complains that the court erred in permitting the witness B. J. Turner, to testify over objection of the movant that the recited consideration of $1500 in the deed from J. B. Turner to him was not the real consideration, which real consideration *Page 773 was that J. B. Turner and his wife should have the right to use and occupy the land as hereinbefore stated, it being contended: (1) that it related to an interest in or was concerning land and violated the provisions of the Code, § 20-401 (4), that any contract for the sale of lands or any interest in or concerning them must be in writing; (2) that the evidence sought to change and vary by parol testimony the terms of a written contract in violation of the Code, § 38-501; (3) that the witness was a privy in estate and title had passed out of him and the testimony could not, under the Code, § 38-407, be received ; (4-a) that the witness was interested in the litigation because of his obligation to the claimants ; and (4-b) that the witness was incompetent to testify under the Code, § 38-1603 (4), which provides that, "Where a person not a party, but a person interested in the result of the suit, shall be offered as a witness, he shall not be competent to testify, if as a party to the cause he would for any cause be incompetent," it being contended that, if a party to the cause, he would have been incompetent to testify under the Code, § 38-1603 (1), which provides that, "Where any suit shall be instituted or defended by . . the personal representative of a deceased person, the opposite party shall not be admitted to testify in his own favor against the . . deceased person as to transactions or communications with such . . deceased person whether such transactions or communications were had by such . . deceased person with the party testifying or with any other person." The contentions designated as (1), (2), (3), and (4-a) are disposed of, adversely to the movant, by what has been said in division 1 of the opinion. The provisions of the Code sections cited under contention (4-b) have no application to the facts of the case. The testimony of B. J. Turner, if it had been given as that of a party to the present litigation, would have had no relation to any transaction with the administrator's intestate, J. G. Edwards. Edwards's interest in the property devolved upon him only by inheritance as the sole heir at law of his wife, formerly Bessie Turner, and the transactions testified to by the witness were only with J. B. Turner and Bessie Turner several years before she married Edwards. Obviously the witness was not incompetent for any reason assigned.
4. Special ground 3 complains of a lengthy portion of the charge of the court, as not merely stating contentions of the claimants *Page 774 but amounting to a statement of facts, which thus constituted an expression of opinion by the court, and was misleading and confusing and an undue and unauthorized emphasis of the claimant's contentions. Without setting forth the charge objected to, it is sufficient to say that it contained nothing but a recital of contentions. The excerpt began by prefixing the first-named contention by the statement, "The plaintiff contends," and thereafter each separate contention was preceded by the word "that." The context shows plainly that each statement was that of a contention by the claimants, and it would be a strained construction to say that the jury would not so understand it merely because the court did not continually repeat before the word "that" the words, "The plaintiff contends." This ground of the motion is without merit.
5. Special ground 4 complains that the court erred in a portion of its charge in stating that the claimants "say that they are in equity and good conscience entitled to the possession and occupancy of the said lands and the rents and profits thereof so long as they or either of them remain in life;" it being contended that their claim was not so based, but was based upon a definite parol agreement between the parties. The right of the claimants rests upon the trust impressed by law upon equitable principles, and the claimants appropriately alleged in their petition in aid of their claim that they "are in equity and good conscience entitled," etc. In fact, in using the language complained of, the court was merely repeating almost verbatim the contentions of the claimants in paragraph 11 of their petition, and, of course, it was not error to state such contentions.
6. Special ground 5 complains that the court, in a portion of its charge, submitted to the jury the question whether or not the witness, B. J. Turner, was competent to testify. The question of his competency was, as urged by the movant, a matter for determination by the court and not by the jury. Since, however, the court should have itself decided as a matter of law that, as hereinbefore ruled, the witness was not incompetent even though interested in the litigation, although his credibility would be for the jury's determination, the submission to the jury of the question of his competency could not be said to be harmful to the movant, but was favorable to him.
Judgment affirmed. All the Justices concur. *Page 775