Dobbson v. Floyd County

Undercofler, Justice. Appellant brought this action in 1971 for injunction and damages against Beech Creek Homes, Inc. and Floyd County. His complaint alleged that Beech Creek began the development of a residential subdivision in 1958; that he purchased a house and lot therein; that each purchaser of a house and lot therein was sold "an undivided interest in the sewage system and oxidation pond with the agreement that each homeowner was to pay one dollar ($1.00) per month as a fee for the maintenance of the sewage system and oxidation pond; that Beech Creek Homes, Inc. would hold the deed in trust on the sewage system and oxidation pond for said homeowners”; that in 1961 an agreement was entered into between Beech Creek and Floyd County [599] whereby Floyd County was to take control of the sewage system and oxidation pond; that Floyd County at that time agreed never to charge more than $1.00 per month service fee; and that Floyd County seeks to raise this fee. The trial court granted each defendant’s motion to dismiss. The complainant appeals. Held: Submitted September 12, 1972 Decided October 5, 1972. Roy N. Newman, for appellants. Jack Kent, George Anderson, for appellees. 1. The appellant acquiesced in the dismissal of Beech Creek Homes, Inc. as a defendant and cannot now complain of that ruling. 2. At the hearing on the motion to dismiss, the parties by agreement submitted to the court copies of the appellant’s deed and Beech Creek Homes, Inc.’s conveyance of the sewage disposal system and oxidation pond to Floyd County. The appellant’s deed makes no mention of the sewage system. The contract of conveyance to Floyd County does not limit the county sewage charge to $1.00. On the contrary, it stated that the county shall have the right "to charge and collect fees and rents for the connection with and use of such system.” In our view the appellant is attempting to establish an express trust by parol and engraft it on an absolute deed. This cannot be done. Code § 108-105; Bentley v. Young, 147 Ga. 373 (1) (94 SE 221); Clinard v. Clinard, 169 Ga. 199, 200 (1, 2) (149 SE 788); and Jones v. Jones, 196 Ga. 492 (1) (26 SE2d 602). Judgment affirmed. All the Justices concur.