
    Bell v. Bell.
    No. 3157.
    January 25, 1923.
    Equitable petition. Before Judge Worrill. Seminole-superior court. February 24, 1922.
    
    Frances Bell died on November 9, 192.0, intestate, not owing any debts, leaving as her sole lieirs at law her husband, Morgan Bell, and a son, Sam Bell, the latter having attained his majority. Morgan Bell instituted an equitable action against Sam Bell, to establish an implied trust in plaintiff’s favor in described land, the legal title to which stood in the name of Frances Bell under a deed at the time of her death. The petition alleged the circumstances under which the property was purchased and title taken in the name of Frances Bell, and the manner in which the property was dealt with, as follows: (4) “ That your petitioner purchased from S. Brinson, on the 19th day of December, 1897, sixty-six acres of land in lot of land No. 164 in the 27th district of Decatur, now Seminole County, Georgia, bargaining to pay for said land the sum of two hundred and sixty-four dollars ($264.00), and said trade was evidenced by the five promissory notes of your petitioner and a bond for title executed by the said S. Brinson to your petitioner.” (5) “Your petitioner is an ignorant negro man and is unable, because of his ignorance, to read and to write, and knows nothing about the affairs pertaining to transactions in land.” (6) “When your petitioner had finished paying for said land and had taken up his five said notes on the 27th day of December, 1904, the said S. Brinson took up said bond for title, which had not been transferred, and made a deed to the wife of your petitioner, the said Frances Bell.” (7) “The said S. Brinson explained to your petitioner that it was better for the said Frances Bell to hold title' to said land in trust for your petitioner; and your petitioner, being ignorant and having confidence in the said S. Brinson, took the deed that was executed to the said Frances Bell, and -had the same recorded in the county of Decatur, a copy of said deed being hereto attached and marked Exhibit A.” (8) .“On or about the 2nd day of April, 1912, J. D. Babón bargained for said land, and your petitioner sold said land at and for the sum of thirteen hundred dollars ($1300.00) to said J. D. Babón, and the purchase-money therefor was paid over to your petitioner, out of which he paid a debt to the said J. D. Babón amounting to about three hundred dollars ($300.00).” (9) “Your petitioner then bargained with the Stuart Lumber Company, a corporation of said county, for one hundred and sixty-six acres of land in lot of land No. 205 in the 27th district of Decatur, now Seminole County, Georgia, and paid the sum of one thousand dollars ($1000.-00) for said land, same being the balance remaining in his hands from the sale of the tract originally purchased from S. Brinson, the deed to said one hundred and sixty-six acres being hereto attached and marked Exhibit B.” “(10) “When said conveyance from said Stuart Lumber Company was made, H. M. Graham, the president of the said Stuart Lumber Company, advised your petitioner to take title to said land in his wife, Frances Bell; and your petitioner, being ignorant and believing that it was to the best interest of himself and family to take and follow the advice of an educated white man, allowed said Stuart Lumber Company to execute such conveyance to his wife, the said Frances Bell, to the said land and upon the delivery of said conveyance to your petitioner he had the same recorded.” (11) “Your petitioner shows that said one thousand dollars ($1000.00) invested in said lands were the proceeds of the original investment made by him with the said S. Brinson on the 9th day of December, 1897, and that every dollar thereof was owned by your petitioner and belonged to your petitioner, and that the title was granted to the said Frances Bell in trust for your petitioner’s special benefit.” (12) “Your petitioner shows that in the fall of 1919 his said wife, Frances Bell, got in bad health, and she promised your petitioner that she would make him a conveyance to said land.” (13) “ Your petitioner took his said wife to the hospital shortly after said promise was made to him, and she was there operated upon, and after that time was never competent to make a conveyance to your petitioner to' said land.”
   Atkinson, J.

When a husband buys land and pays the purchase money thereof, but has a deed made to his wife, the law raises the presumption of a gift by the husband to his wife. Jackson v. Jackson, 150 Ga. 544 (104 S. E. 236); Kimbrough v. Kimbrough, 99 Ga. 134 (25 S. E. 176). There being no allegation in the petition in this ease denying that there was any intention on the part of the husband to make a gift of the land to his wife, or any facts stated which would rebut such presumption, the court below did not err in sustaining the general demurrer to the petition.

Judgment affirmed.

All the Justices concur, except Russell, O. J., and, Gilbert, J., dissenting.

The action was dismissed on general demurrer, and the plaintiff excepted.

John E. Drake and W. V. Ouster, for plaintiff.  