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HAWKINS, Justice.
Equitable petition. Before Judge Andrews. Fulton Superior Court. November 25, 1952.
To this original petition the defendant demurred upon the grounds: (1) that it fails to set forth a cause of action either at law or in equity; (2) that it is barred by the statute of limitations, in that any cause of action the plaintiff had has been barred by seven years possession, and more than eighteen years have expired prior to the bringing of the suit; and (3) that it is barred by laches, more than eighteen years having transpired from the date of the alleged purchase of the property before bringing this suit.
This demurrer was sustained by the trial court with leave to amend within fifteen days. Within that time the petitioner amended her petition by striking paragraph 13 thereof, which alleged: "The defendant now claims that she has title to said property, and has told petitioner that she must vacate the premises"; and alleged in the amendment that, on February 28, 1950, the defendant sued Paul Epps (the petitioner's son) for divorce and alimony; that in the petition for divorce the defendant stated that she had title to the property described in Exhibit "B", and a copy of the divorce petition is attached to the amendment; that on October 11, 1950, the defendant was granted a divorce with alimony, a copy of the decree being attached to the petition, and that from October 11, 1950, the defendant has claimed title to the properties described.
Upon a renewal of the original demurrers to the petition as thus amended, the trial court overruled the demurrers, and to this judgment the defendant excepts. Held:
1. While the demurrer to the original petition was properly sustained upon the theory that the petition showed that eighteen years had elapsed since title to the property was placed in the defendant, and an action to impose or enforce an implied or constructive trust as to land must generally be brought within seven years from the date the cause of action accrues ( Brown v. Brown, 208 Ga. 404, 67 S. E. 2d, 128), the original petition having alleged that the plaintiff and the defendant occupied the premises jointly, and that the possession of the defendant was permissive only, and the amendment having alleged that the defendant first asserted an adverse claim to the property after the rendition of the divorce decree between the defendant and her husband in 1950 the action, having been instituted within seven years after such notice of adverse claim, was not barred by the statute of limitations or by laches. Hadaway v. Hadaway, 192 Ga. 265 (14 S. E. 2d 874), Brown v. Brown, 209 Ga. 620.
2. "Trusts are implied 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 (1). "Implied trusts are such as are inferred by law from the nature of the transaction or the conduct of the parties." 108-104. "Such a trust does not arise from an agreement, but by implication of law from acts and conduct." Stevens v. Stevens, 204 Ga. 340 (1) (49 S. E. 2d, 895). "An implied trust re suits from the fact that one person's money has been invested in land and the conveyance taken in the name of another. It is a mere creature of equity." McCollum v. McCollun, 202 Ga,. 406 (1) (43 S. E. 2d, 663); Williams v. Porter, 202 Ga. 113 (1) (42 S. E. 2d, 475); Price v. Price, 205 Ga. 623 (54 S. E. 2d, 578); Clark v. Griffon, 207 Ga. 255 (61 S. E. 2d, 128).
3. Applying the foregoing principles to the allegations of the petition in this case, it stated a cause of action, and the trial judge did not err in overruling the general demurrer thereto.
Stephens Mitchell and Mitchell & Mitchell, contra.
Fine & Efurd, Robert T. Efurd and Noah H. Stone, for plaintiff in error.
Saturday May 23 04:08 EDT

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