Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1910, § 3739, former Code 1933, §§ 108-104 and 108-107, former O.C.G.A. § 53-12-32, and former O.C.G.A. § 53-12-93 of the 1991 Trust Act are included in the annotations for this Code section.

Not a remedy for simple breach of contract.

- While Georgia law recognizes that a constructive trust may be imposed upon property acquired by fraud, a constructive trust is not a remedy for a simple breach of contract or breach of a promise. Perkins v. Crown Fin., LLC (In re Int'l Mgmt. Assocs., LLC), Bankr. (Bankr. N.D. Ga. Feb. 9, 2016)(Unpublished).

Post-bankruptcy retirement benefits held in constructive trust for ex-spouse.

- Debtor held any post-bankruptcy petition payment that the debtor might receive on the debtor's retirement benefit in constructive trust for the debtor's ex-spouse to the extent of one half of such net benefit, since established principles of equity would not allow the debtor to be unjustly enriched at the ex-spouse's expense by discharging in bankruptcy an interest in a benefit established by a final divorce decree. Farrow v. Farrow, 116 Bankr. 310 (Bankr. M.D. Ga. 1990) (decided under former O.C.G.A. § 53-12-32).

Loan funds deposited for the purpose of paying a specific creditor.

- Repayment of the loan was not a transfer of an interest of the debtor's property and, therefore, not voidable as a preferential treatment, since the funds were loaned to be applied to pay a specific creditor, debtor deposited the funds into a checking account the sole purpose of which was to satisfy that obligation, the debtor understood that the funds could not be used for any other purpose, and the balance in the account always exceeded the amount of the loan before the debtor repaid defendant. Tidwell v. Hendricks (In re McDowell), 258 Bankr. 296 (Bankr. M.D. Ga. 2001) (decided under former O.C.G.A. § 53-12-93).

No trust for nontitled tenant.

- When evidence authorized the trial judge to conclude as a matter of law that defendant occupied premises as a tenant after conveying title to the property, no constructive trust implying a life estate was shown. Pope v. Hendley, 206 Ga. App. 773, 426 S.E.2d 607 (1992) (decided under former O.C.G.A. § 53-12-93 of the 1991 Trust Act).

Constructive trust arises not from the intent of the parties, but by equity with respect to property acquired by fraud, or although acquired without fraud, since it is against equity that the property should be retained by the one who holds the property. Aetna Life Ins. Co. v. Weekes, 241 Ga. 169, 244 S.E.2d 46 (1978) (decided under former Code 1933, § 108-104).

Constructive trust would defeat bankruptcy trustee's avoidance action.

- Creditor could defeat a trustee's 11 U.S.C. §§ 547 and 548 actions by proving that the trustee could have successfully impressed a constructive trust on property under Georgia law prior to the debtor's transfer of the debtor's legal interest in that property to the trustee. Kelley v. McCormack (In re Mitchell), 548 Bankr. 862 (Bankr. M.D. Ga. 2016).

Actions of guardian.

- Guardian cannot, either directly or indirectly, buy property of the guardian's ward at a sale thereof by some other person or authority, as a creditor of the ward selling at public auction under a power of sale. If the guardian does by such means acquire the legal title to property of the guardian's ward, the guardian will be deemed a trustee as to such property at the election of the ward or the ward's heirs at law. Allen v. Wade, 203 Ga. 753, 48 S.E.2d 538 (1948) (decided under former Code 1933, § 108-107).

If, after appointment of one as guardian of another's property, one buys a tax claim against one's ward's estate, as by obtaining a deed to oneself from a county conveying land which the county had previously purchased as the property of the ward at a tax sale, one will be treated in equity as holding under such deed as trustee for one's ward. Allen v. Wade, 203 Ga. 753, 48 S.E.2d 538 (1948) (decided under former Code 1933, § 108-107).

Obtaining items by trick, fraud, or other wrong act.

- When one by a trick, or a fraud, or other wrongful act, obtained money from the trustee of the victim, one was, unless one had some other or better right thereto, an involuntary trustee of the thing gained for the benefit of the person who would have otherwise had the thing. Cordovano v. State, 61 Ga. App. 590, 7 S.E.2d 45 (1940) (decided under former Code 1933, § 108-107).

When defendant obtained money by fraud and trickery ("the telegram racket") in order to prevent the defendant from taking advantage of defendant's own wrong, a naked, constructive, ex maleficio trust would be imposed by operation of law upon the property thus obtained even though it was contrary to the defendant's intention and will, and the defendant became a trustee ex maleficio for such property; the defendant was trustee ex maleficio of a naked ex maleficio trust, which required no action on the defendant's part beyond the turning over or returning of the money to the beneficiary, the victim. Cordovano v. State, 61 Ga. App. 590, 7 S.E.2d 45 (1940) (decided under former Code 1933, § 108-107).

Liens upon crops.

- When after signing a waiver of all liens upon the crops grown by a tenant in favor of a lien of a third party for advances to aid in making crops, the landlord receives the proceeds from the crops, which are sufficient to satisfy the lien for advances, and converts the land to the third party's own use, a petition of the holder of the lien for such advances against the landlord and the tenant, seeking judgment against them as trustees ex maleficio for the full amount of such advances, states a cause of action against both the owner and tenant. Trapnell v. Swainsboro Prod. Credit Ass'n, 208 Ga. 89, 65 S.E.2d 179 (1951) (decided under former Code 1933, § 108-107).

Implied trust created.

- When land is purchased by one with the money of others, under an agreement and understanding that title is to be taken in the name of all, and the one procures a deed to the land but causes the deed to be made to oneself alone, an implied trust will arise in favor of the others as to an undivided interest in the land. Chapman v. Faughnan, 183 Ga. 114, 187 S.E. 634 (1936) (decided under former Code 1933, § 108-107).

When the estate of the decedent consisted in part of land, and one of the heirs at law of the decedent is in possession thereof under an agreement with one's cotenants to act as their agent, and one procures another person to administer on the estate for the purpose of divesting the title of the other heirs at law and obtaining it personally, and does thus obtain the title, and conceals one's acts and doings with respect thereto from one's cotenants and principals, a court of equity would decree such title to be void, and the defendant to hold as trustee for those entitled to it. Lanier v. Dyer, 222 Ga. 30, 148 S.E.2d 432 (1966) (decided under former Code 1933, § 108-107).

Actions of agents and creation of trusts.

- When an agency is established, the agent will be held to be a trustee as to any profits, advantages, rights, or privileges under any contract made and obtained within the scope and by reason of such agency; and where the agent invests such profits in property or places the same to one's credit in a bank, one will be held to hold the property as trustee for the principal, and the latter can maintain in a court of equity an action to trace such profits into such investments, and to enjoin the agent or the donee from selling, disposing of, or incumbering any such profits or any property in which the profits have been invested. Smith v. Harvey-Given Co., 182 Ga. 410, 185 S.E. 793 (1936) (decided under former Code 1910, § 3739).

Fraud in marriage.

- When a woman marries a man, knowing that she has a living husband to whom she is married, such fact being unknown to the second husband, she perpetrates such fraud as will authorize cancellation of a deed to her made upon love and affection by her purported husband. Hargrett v. Hargrett, 242 Ga. 725, 251 S.E.2d 235 (1978), overruled on other grounds, Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980) (decided under former Code 1933, § 108-107).

When a wife guilty of adultery unknown to her husband importunes him to make a gift of property to her in contemplation of her renewed adultery and possible elopement, the gift will be revoked as a fraud upon the husband. Hargrett v. Hargrett, 242 Ga. 725, 251 S.E.2d 235 (1978), overruled on other grounds, Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980) (decided under former Code 1933, § 108-107).

When a promise of the wife was the consideration inducing execution of a deed, and such promise was fraudulently made with intent not to comply, such deed may be set aside for inceptive fraud. Hargrett v. Hargrett, 242 Ga. 725, 251 S.E.2d 235 (1978), overruled on other grounds, Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980) (decided under former Code 1933, § 108-107).

Equity interest created.

- Although there was no purchase money resulting trust created under former O.C.G.A. §§ 53-12-90,53-12-91, and53-12-92 (see O.C.G.A. §§ 53-12-2,53-12-130, and53-12-131), a decedent's mother was entitled to an equity interest in property of the deceased daughter because a constructive trust was established under former O.C.G.A. § 53-12-93 (see O.C.G.A. § 53-12-132) and there was evidence of a gift of land under O.C.G.A. § 23-2-132, as an exception to the statute of frauds, in that the mother lived on the property, made valuable improvements, and paid meritorious consideration. Oliver v. 4708 Old Highgate Entry, F. Supp. 2d (N.D. Ga. Apr. 21, 2009) (decided under former O.C.G.A. § 53-12-93).

Trial court erred by granting the appellees' motion for summary judgment as to the claim for imposition of a constructive trust because material issues of fact remained as to whether the appellees, inconsistently with the appellants' rights and contrary to equity, exercised dominion over their property. Bo Phillips Company, Inc. v. R. L. King Properties, LLC, 336 Ga. App. 705, 783 S.E.2d 445 (2016).

Partition.

- Plaintiff stated a claim upon which relief could be granted when the plaintiff sought partition of three parcels of property on the basis that plaintiff was induced to make valuable improvements to the parcels. Lathem v. Hestley, 270 Ga. 849, 514 S.E.2d 440 (1999) (decided under former O.C.G.A. § 53-12-93).

Property in which embezzled funds invested.

- When funds are embezzled, the victim can trace such funds into the property in which the embezzler invested the funds and obtain an equitable lien on such property. First Nat'l Bank v. Hill, 412 F. Supp. 422 (N.D. Ga. 1976) (decided under former law).

Genuine issue of material fact as to whether a constructive trust should be implied.

- Trial court erred in granting summary judgment to a record title holder in a quiet title action because a disputed question of material fact existed whether the holder had agreed to deed back the properties at issue to the claimant after financing fell through; thus, a dispute existed as to whether a constructive trust should be implied under the circumstances. Ansley v. Raczka-Long, 293 Ga. 138, 744 S.E.2d 55 (2013).

Trial court erred in granting an ex-husband summary judgment as to the ex-wife's and mother's implied trust claim because there was a genuine issue of material fact regarding whether an implied constructive trust arose at the time of the 2008 conveyance. Robertson v. Robertson, 333 Ga. App. 864, 778 S.E.2d 6 (2015).

Assuming that a widow's counterclaim against her late husband's two siblings for failure to continue mortgage payments on a home that the husband had bought for another sibling was for a constructive trust on the property, the widow was not entitled to summary judgment because the familial gift presumption applicable to purchase money resulting trusts could apply, or the husband's contributions toward the home could be considered gifts or voluntary payments. Roberts v. Smith, 341 Ga. App. 823, 801 S.E.2d 915 (2017).

No constructive trust would be imposed on the property of an automobile dealer when there was no evidence that the dealer was aware of the fraudulent scheme of the buyer's agent to convert the buyer's money. Atlanta Classic Cars, Inc. v. Chih Hung USA Auto Corp., 209 Ga. App. 908, 439 S.E.2d 498 (1993) (decided under former O.C.G.A. § 53-12-93).

When clients of an absconding defendant were not the debtors or fiduciaries of other clients, and when no evidence of wrongdoing on their part was presented, there was no unjust enrichment in permitting their reclamation of investments, and no constructive trust was created. Deer Creek, Inc. v. Section 1031 Servs., Inc., 235 Ga. App. 891, 510 S.E.2d 853 (1999) (decided under former O.C.G.A. § 53-12-93).

In an action in which the patients alleged that the hospital was a not-for-profit corporation that charged inflated rates to uninsured patients and used excessively aggressive tactics to collect on unpaid bills, the tax exemption granted under I.R.C. § 501(c)(3) did not create a trust, express or implied, resulting or constructive; furthermore, the patients did not adequately allege a resulting or constructive trust pursuant to former O.C.G.A. §§ 53-12-91 and53-12-93 (see O.C.G.A. §§ 53-12-130 and53-12-131), respectively. Hogland v. Athens Reg'l Health Servs., F. Supp. 2d (M.D. Ga. Jan. 21, 2005) (decided under former O.C.G.A. § 53-12-93).

Daughter-in-law was not entitled to a constructive trust under former O.C.G.A. § 53-12-93 (see O.C.G.A. § 53-12-132) on the marital home, which her former father-in-law had foreclosed upon and purchased, because the broken verbal promise, that the daughter-in-law could continue to live there after the divorce, was not made with the intent to later break it so that the father-in-law could take her interest as the daughter-in-law voluntarily left the property when she remarried. Parris v. Leifels, 280 Ga. 135, 625 S.E.2d 390 (2006) (decided under former O.C.G.A. § 53-12-93).

Denial of a sister's and an executor's motions for a judgment notwithstanding the verdict was reversed as a constructive trust could not be imposed over the proceeds of a condemnation since: (1) a mother did not make any agreement with her children regarding the quitclaim deeds or the proceeds of the condemnation; (2) the documents signed by the siblings were unequivocal and unrestricted; (3) the mother did not make any promise with the intent not to carry it out; (4) there was nothing to indicate that when the mother obtained a certificate of deposit and opened a money market account in her and the executor's and the sister's names as joint tenants with right of survivorship, she meant to do anything other than that; and (5) the siblings did not raise the issue of a constructive trust in the condemnation proceedings and were collaterally estopped from raising the issue in a later action. Jenkins v. Jenkins, 281 Ga. App. 756, 637 S.E.2d 56 (2006), cert. denied, 2007 Ga. LEXIS 87 (Ga. 2007) (decided under former O.C.G.A. § 53-12-93).

Pursuant to former O.C.G.A. § 53-12-93 (see O.C.G.A. § 53-12-132), a creditor could not establish that it was a beneficiary of a constructive trust because such a determination depended upon a finding that an assignment of a debtor's insurance proceeds occurred, giving the creditor an identifiable interest in the insurance proceeds; here, there was no written assignment, and oral conversations between the creditor and debtor about the insurance proceeds were not enough to constitute an assignment, particularly in light of the parol evidence rule, O.C.G.A. § 13-2-2. Aero Housewares, LLC v. Interstate Restoration Group, Inc. (In re Aero Plastics, Inc.), Bankr. (Bankr. N.D. Ga. Sept. 27, 2006) (decided under former O.C.G.A. § 53-12-93).

Sellers under a real estate contract that contained a merger clause were not entitled under former O.C.G.A. § 53-12-93 (see O.C.G.A. § 53-12-132) to impose a constructive trust against the buyer based on the buyer's alleged oral misrepresentations; by affirming the contract and the merger clause contained therein, the sellers had effectively disclaimed these misrepresentations and ratified the transfer of the property. Ekeledo v. Amporful, 281 Ga. 817, 642 S.E.2d 20 (2007) (decided under former O.C.G.A. § 53-12-93).

It was error not to direct a verdict pursuant to O.C.G.A. § 9-11-50(a) to a putative property owner in an action by various family members, seeking to impose a constructive trust on real property under former O.C.G.A. § 53-12-93 (see O.C.G.A. § 53-12-132), as it was inequitable to grant the family members an interest in the property because the putative owner had worked the farm on it for over 18 years and had spent significant sums on the property compared to the very minimal amounts contributed by the family members over the years; the doctrine of part performance as an exception to the Statute of Frauds under O.C.G.A. § 13-5-31(3) was inapplicable because the oral agreement was not sufficiently certain or definite for purposes of enforcement. Troutman v. Troutman, 297 Ga. App. 62, 676 S.E.2d 787 (2009) (decided under former O.C.G.A. § 53-12-93).

Property owner who sought part payment under insurance settlement not entitled to constructive trust.

- In an action for equitable interpleader and declaratory relief which a bank filed, pursuant to O.C.G.A. § 23-3-90, against a wife who owned an undivided one-half interest in a residence, the trial court's judgment rejecting the wife's argument that the court should impose a constructive trust on half the proceeds of an insurance settlement that was reached after the residence was damaged by fire, and awarding the bank the entire amount of the settlement, was affirmed. Pearlman v. Sec. Bank & Trust Co., 261 Ga. App. 270, 582 S.E.2d 219 (2003) (decided under former O.C.G.A. § 53-12-93).

Mortgagee's administration of an escrow account does not give rise to either a trust or an agency relationship. Telfair v. First Union Mortg. Corp., 216 F.3d 1333 (11th Cir. 2000), cert. denied, 531 U.S. 1073, 121 S. Ct. 765, 148 L. Ed. 2d 666 (2001) (decided under former O.C.G.A. § 53-12-93).

Constructive trust established.

- Jury's finding that a decedent's purported second spouse was entitled to an equitable interest in a home that the spouse shared with the decedent was supported by the evidence, albeit slight, since the spouse and the decedent paid the mortgage from a joint account and the spouse continued to make payments on the house following the decedent's death. Singleton v. Wilburn, 262 Ga. App. 52, 584 S.E.2d 659 (2003) (decided under former O.C.G.A. § 53-12-93).

Though title to a strip of property was in the buyers, a resulting trust arose in favor of the selling wife, through payment of monthly payments to the financing company and taxes. Whiten v. Murray, 267 Ga. App. 417, 599 S.E.2d 346 (2004) (decided under former O.C.G.A. § 53-12-93).

Uninsured patients could not challenge a hospital's tax exempt status under 26 U.S.C. § 501(c)(3) by alleging that the hospital breached an implied charitable trust in its billing and collection policies for uninsured and indigent patients because the tax exempt status did not meet the definition of a constructive trust under former O.C.G.A. § 53-12-93, as entitlement to the exemption was a question of tax law and not a question of equity. Washington v. Med. Ctr. of Cent. Ga., Inc., F. Supp. 2d (M.D. Ga. Jan. 21, 2005) (decided under former O.C.G.A. § 53-12-93).

Evidence supported a finding that the life insurance funds from the deaths of a daughter's parents in the hands of the daughter's grandmother were subject to a constructive trust since the insurance company paid the funds to the grandfather based on the acquiescence of the daughter's uncle, who was the administrator of the parents' estates, and the assertion that the parents' deaths were simultaneous, which acquiescence, in light of the contrary evidence and in light of the uncle's own conclusion that the mother died first, was a breach of the uncle's fiduciary duties owed to the daughter; the evidence showed that the grandfather would have been unjustly enriched by retaining those insurance funds that should have been paid to the daughter through the estates; receiving the proceeds under the grandfather's will, the grandmother was also not an innocent purchaser and therefore took title to the proceeds subject to the trust impressed upon them. Jonas v. Jonas, 280 Ga. App. 155, 633 S.E.2d 544 (2006) (decided under former O.C.G.A. § 53-12-93).

Denial of a sister's motion for a judgment notwithstanding the verdict was affirmed as there was evidence supporting the imposition of a constructive trust on a bank account owned jointly with right of survivorship by the mother, who passed away, and the sister since the sister acknowledged that the account was opened for the mother's convenience. Jenkins v. Jenkins, 281 Ga. App. 756, 637 S.E.2d 56 (2006), cert. denied, 2007 Ga. LEXIS 87 (Ga. 2007) (decided under former O.C.G.A. § 53-12-93).

Given evidence that the father performed part of the agreement at issue with a son for the latter to transfer title to a house, specifically by selling the father's house and paying the son the proceeds in exchange for the son's promise to convey, when the son failed to convey the house the trial court properly granted the father a constructive trust based on fraud, denied the son a directed verdict, and sustained the jury's verdict. Perry v. Perry, 285 Ga. App. 892, 648 S.E.2d 193 (2007) (decided under former O.C.G.A. § 53-12-93).

Beneficiaries of a will sued the decedent's grandchild for conversion of stock the beneficiaries alleged was intended to be part of the decedent's estate. A constructive trust arose under O.C.G.A. § 53-12-93 as the evidence showed the grandchild agreed to hold the stock in trust for the beneficiaries. Bunch v. Byington, 292 Ga. App. 497, 664 S.E.2d 842 (2008) (decided under former O.C.G.A. § 53-12-93).

In a case arising from a mortgage fraud scheme in which a title insurance company filed a 21 U.S.C. § 853(n)(2) petition for an ancillary hearing with regard to the company's interest in certain property that was subject to a criminal forfeiture order, the district court erred in dismissing the petition. The title insurance company had a constructive trust on the forfeited real estate, as defined by O.C.G.A. § 53-12-93(a), and the constructive trust could serve as a superior legal interest under 21 U.S.C. § 853(n)(6)(A) that could serve as grounds for invalidating the criminal forfeiture order. United States v. Shefton, 548 F.3d 1360 (11th Cir. 2008) (decided under former O.C.G.A. § 53-12-93).

No constructive trust for hotel occupancy taxes.

- In a city's action to recover unpaid occupancy taxes from several online travel companies pursuant to O.C.G.A. § 48-13-50 et seq., summary judgment for the companies was proper on the city's breach of constructive trust claim under O.C.G.A. § 53-12-132(a) because, under the law of the case, O.C.G.A. § 9-11-60(h), that claim had been rejected by the trial court and affirmed in a prior appeal. City of Atlanta v. Hotels.com, L.P., 332 Ga. App. 888, 775 S.E.2d 276 (2015).

Constructive trust not established.

- With respect to a Chapter 11 bankruptcy in which the debtor, a business that served as an intermediary for clients desiring to effect exchanges of real property qualifying for tax-deferred treatment under 26 U.S.C. § 1031, held funds in bank accounts that resulted from certain real estate sales, two real estate exchange investors were not entitled to turnover of proceeds from sales of their real estate, as opposed to having their claims payable on the same basis as the other unpaid exchangers, because the written agreements between the investors and the debtor specifically and unequivocally defined the circumstances under which the debtor acquired cash proceeds and the use and disposition of those proceeds, but did not create an express trust under O.C.G.A. § 53-12-20. Nor could the investors establish a resulting trust under O.C.G.A. § 53-12-91 or a constructive trust under O.C.G.A. § 53-12-93. McCamy v. Kerr (In re Real Estate Exch. Servs.), Bankr. (Bankr. N.D. Ga. Oct. 9, 2009) (decided under former O.C.G.A. § 53-12-93).

Partial payment made to a contractor by a debtor consisted of "a transfer of an interest of the debtor in property," and was not held in constructive trust for the contractor because, although the contract between the debtor and the contractor contemplated payment upon the debtor's receipt of insurance proceeds, the contract in no way purported to transfer the debtor's interest in the proceeds to the contractor by assignment or other means. Flatau v. Curington, LLC (In re Nobles), Bankr. (Bankr. M.D. Ga. Aug. 17, 2010).

Bankruptcy court did not abuse the court's discretion in concluding that equitable considerations did not support the establishment of a constructive trust in real estate the debtor transferred to the debtor's spouse, as they did not allege fraudulent conduct between them, or that the spouse was induced to make valuable improvements to the land based on a representation that the spouse would acquire an interest in the land by making the improvements. Wallace v. McFarland (In re McFarland), F.3d (11th Cir. Oct. 16, 2015)(Unpublished).

As no party contended that a writing established the interests of certain entities, there could be no express trust under Georgia law. Nor was there a constructive trust as no wrongdoing was alleged on the part of the debtor. High-Top Holdings, Inc. v. RREF II BB Acquisitions, LLC (In re High-Top Holdings, Inc.), 564 Bankr. 784 (Bankr. N.D. Ga. 2017).

In a widow's suit seeking to impose a constructive trust on accounts and assets conveyed by the decedent to the decedent's executor, the trial court did not err in excluding hearsay testimony of the widow's daughter and a close friend of the decedent stating that the assets had been conveyed to the executor for the care and support of the widow. The testimony was vague and was not proven to be admissible under the trustworthiness exception of O.C.G.A. § 24-8-807. Rabun v. Rabun, 341 Ga. App. 878, 802 S.E.2d 296 (2017).

Summary judgment precluded.

- In an action by grandsons to impress an implied trust on land acquired by their father under their mother's will, a fact question as to whether the father had agreed with the grandmother and mother that the land would remain in the family and eventually go to one of the grandsons as his share of his maternal grandparent's property precluded summary judgment. Edwards v. Edwards, 267 Ga. 780, 482 S.E.2d 701 (1997) (decided under former O.C.G.A. § 53-12-93).

Summary judgment in favor of a subcontractor against a building owner was reversed since, inter alia, even assuming that the building owner had possession of the heat pumps supplied by the building owner, there was no evidence that allowing the building owner to retain the heat pumps violated some principle of equity; since the building owner paid the general contractor for the heat pumps, when the general contractor failed to pay the subcontractor, when there was no evidence that the building owner knew or should have known that the general contractor did not intend to pay the subcontractor, the circumstances were insufficient to authorize summary judgment against the building owner on an implied constructive trust. Tabar, Inc. v. D & D Servs., 267 Ga. App. 659, 601 S.E.2d 143 (2004) (decided under former O.C.G.A. § 53-12-93).

In a dispute over the decedent's estate in which the decedent's son petitioned the trial court for a constructive trust to be imposed on the proceeds from savings bonds that the son alleged rightfully belonged to the decedent's estate, but which had been redeemed by the decedent's grandson, summary judgment was improperly granted to the grandson because there were genuine issues of material fact as to whether the grandson owed the decedent a fiduciary duty, whether the grandson breached that duty, and whether the grandson caused damages when the grandson did not comply with the decedent's request to return the bonds to the decedent's sole ownership. Ray v. Hadaway, 344 Ga. App. 642, 811 S.E.2d 80 (2018).

Directed verdict improperly granted.

- In a suit seeking to impose a constructive trust on real property formerly belonging to the plaintiff's mother, a directed verdict was improperly granted to the defendants as the evidence supported a constructive trust theory because the plaintiff's allegations did not rest solely on evidence that a brother and the brother's wife broke a promise to hold the property for all the siblings' benefit as the plaintiff offered evidence that the mother had always intended for the children to share in the property and transferred the property to the brother to protect the property from a legal judgment; and the siblings agreed on an appropriate distribution plan after their mother's death, but the brother refused to apply the distribution plan to the plaintiff. Maxey v. Sapp, 340 Ga. App. 116, 796 S.E.2d 740 (2017).

Inordinate delay.

- After an executor waited 36 years after certain property was titled in a brother's name to bring a constructive trust in favor of a decedent's estate under former O.C.G.A. § 53-12-93 (see O.C.G.A. § 53-12-132), the delay was inordinate; therefore, the claim was barred by laches under O.C.G.A. § 9-3-3 and summary judgment was properly granted. Cagle v. Cagle, 277 Ga. 219, 586 S.E.2d 665 (2003) (decided under former O.C.G.A. § 53-12-93).

Former wife was not entitled to impose a constructive trust on her former husband's military pension pursuant to O.C.G.A. § 53-12-132 because she failed to object to the absence of any provision for the pension in their divorce decree for 12 years and failed to bring suit until five years after payments allegedly became due. Davis v. Davis, 310 Ga. App. 512, 713 S.E.2d 694 (2011).

Whether laches should apply depends on a consideration of the particular circumstances, including the length of the delay in the claimant's assertion of rights, the sufficiency of the excuse for the delay, the loss of evidence on disputed matters, the opportunity for the claimant to have acted sooner, and whether the claimant or the adverse party possessed the property during the delay; thus, where a party filed a complaint in equity less than a year after the action accrued, could not be found guilty of laches. Whiten v. Murray, 267 Ga. App. 417, 599 S.E.2d 346 (2004) (decided under former O.C.G.A. § 53-12-93).

Cited in McDonald v. Dabney, 161 Ga. 711, 132 S.E. 547 (1926); O'Callaghan v. Bank of Eastman, 180 Ga. 812, 180 S.E. 847 (1935); Guffin v. Kelly, 191 Ga. 880, 14 S.E.2d 50 (1941); Ross v. Rambo, 195 Ga. 100, 23 S.E.2d 687 (1942); Murray County v. Pickering, 196 Ga. 208, 26 S.E.2d 287 (1943); Groover v. Brandon, 200 Ga. 153, 36 S.E.2d 84 (1945); Clark v. Griffon, 207 Ga. 255, 61 S.E.2d 128 (1950); Westbrook v. Westbrook, 212 Ga. 472, 93 S.E.2d 683 (1956); Hodges v. Hodges, 221 Ga. 587, 146 S.E.2d 313 (1965); Presbyterian Church v. Eastern Heights Presbyterian Church, 225 Ga. 259, 167 S.E.2d 658 (1969); Parker v. Spurlin, 227 Ga. 183, 179 S.E.2d 251 (1971); McCann v. McCrain, 228 Ga. 814, 188 S.E.2d 484 (1972); Cheek v. J. Allen Couch & Son Funeral Home, 125 Ga. App. 438, 187 S.E.2d 907 (1972); Arey v. Davis, 233 Ga. 951, 213 S.E.2d 837 (1975); Carnes v. Smith, 236 Ga. 30, 222 S.E.2d 322 (1976); Jones v. Wolf, 443 U.S. 595, 99 S. Ct. 3020, 61 L. Ed. 2d 775 (1979); Eason v. Farmer, 261 Ga. 675, 409 S.E.2d 509 (1991); Parello v. Maio, 268 Ga. 852, 494 S.E.2d 331 (1998); Hood v. Smoak, 271 Ga. 86, 516 S.E.2d 301 (1999); Dodd v. Scott, 250 Ga. App. 32, 550 S.E.2d 444 (2001); Pearlman v. Sec. Bank & Trust Co., 261 Ga. App. 270, 582 S.E.2d 219 (2003).

Am. Jur. 2d.

- 76 Am. Jur. 2d, Trusts, § 168 et seq.

Constructive Trust Based on Confidential Relationship Between Parties to Transfer of Property, 31 POF2d 229.

Constructive Trust Formed Because of Abuse of Confidential Relationship Between Transferee and Transferor of Property, 79 POF3d 269.

Proof of Grantor's Intent that Grantee Hold Property in Trust, 74 POF3d 353.

Am. Jur. Pleading and Practice Forms, Trusts, §§ 57 to 78.

C.J.S.

- 90 C.J.S., Trusts, § 14.

ALR.

- Grantee's oral promise to grantor as giving rise to trust, 35 A.L.R. 280; 45 A.L.R. 851; 80 A.L.R. 195; 129 A.L.R. 689; 159 A.L.R. 997.

Rights of parties under oral agreement to buy land or bid it in at judicial sale for another, 42 A.L.R. 10; 135 A.L.R. 232.

Remedy of one whose money is fraudulently used in purchase or improvement of real property, 48 A.L.R. 1269.

Impossibility by reason of economic or other conditions of carrying out terms of testamentary trust profitably or without as ground for holding it invalid or terminating it, 92 A.L.R. 157; 97 A.L.R. 325.

Payments made or obligations incurred by a constructive trustee or a trustee ex maleficio as a charge upon or a liability of the trust estate, 124 A.L.R. 1409.

Liability of beneficiary to insured, his committee or estate, in respect of disability benefits resulting from insure insanity, which, pursuant to terms of policy, are paid to beneficiary, 159 A.L.R. 1206.

Doctrine of constructive trust or unjust enrichment as applicable between owner and one who fraudulently procures tax certificates, 175 A.L.R. 700.

Power of court to extend term of trust, 46 A.L.R.2d 907.

Imposition or declaration of constructive or resulting trust in United States saving bonds, 51 A.L.R.2d 163.

Imposition of constructive trust in property bought with stolen or embezzled funds, 38 A.L.R.3d 1354.

Determination of property rights between local church and parent church body: modern view, 52 A.L.R.3d 324.

Trusts: merger of legal and equitable estates where sole trustees are sole beneficiaries, 7 A.L.R.4th 621.