Endsley v. Taylor

Atkinson, J. Prior to the enactment of the married woman’s act, approved December 13, 1866 (Acts 1866, p. 146), the code provided, among other things, as follows: “All property given to the wife during coverture, or acquired by her, shall vest in the husband, but any words in the gift or bequest indicating a wish for the personal enjoyment thereof by the wife, such as a gift to the wife by name, shall create a separate estate therein for her.” Code of 1863, § 1702. This provision of the code had the effect of a statute, as the code was regularly adopted by the legislature. The testimony of the witness quoted in the statement of facts, for convenience, may be again stated, as follows: “As to what occurred between my grandfather and mother and father at that time, he told them he wanted her to buy her a place with the money for her — wanted her to buy a place with the money — wanted him to, and my mother consented to that; that is what he wanted done with it.” This indicated that the money with which the purchase-price of the Shearer place was paid was a gift from Mrs. Taylor’s father, intended for her, and was made in such way as to make it her separate estate. Under such circumstances the marital rights of the husband would not attach to it. In this connection see Perkins v. Keith, 33 Ga. 525; Robson v. Jones, 27 Ga. 266. As the money was the separate property of Mrs. Taylor, to which her husband’s marital rights would not attach, he had no lawful right to appropriate it to his own use. If he purchased property with it and took title in his own name, his relation to the property would be the same as if the money had belonged to a stranger. So treating it, he would hold the legal title impressed with an implied trust for the benefit of his wife, whose money paid for the land. Williams v. Smith, 128 Ga. 306 (57 S. E. 801); Manning v. Manning, 135 Ga. 597 (69 S. E. 1126); Civil Code, § 3739. Such an implied [610] trust could be enforced against tlie trustee, and also against a purchaser from him with notice of the trust. Williams v. Smith, supra. There was sufficient evidence to authorize a finding that D. S. Taylor had notice of the trust at the time of his purchase. Nor do the circumstances detailed by the evidence show that the plaintiffs are barred on account of delay in instituting the suit. It does not appear that their mother assented to the deed having been taken in the name of her husband, or that she knew of the fact. She lived on the property as a member of the family until her death in 1907. After her death the suit was brought in 1911, and no rights of innocent third persons had attached. From what has been said, it follows that it was erroneous to grant a nonsuit relatively to the Shearer place. In regard to the other two places, there was evidence tending to show that the property was bought in part with profits derived from the farm conducted by A. Q. Taylor 'and his family on the several tracts including the Shearer tract. As the judgment will be reversed, and on another trial the evidence may not be the same, no ruling is made as to whether the evidence was sufficient to show an implied trust relatively to the other two tracts. Judgment reversed. All the Justices concur.