232 N.C. 465
N.C.
1950
"WiNBORNE, J.

Ownership of personal property, when challenged, is always a mixed question of law and fact. If the facts are not in dispute it becomes a question of law for the court. But if they be in dispute, the question is left to the jury under proper instructions by the court upon the law. 42 Am. Jur. 218, Pеrsonal Property 41. Applying these rules to the evidence offered on the trial of present action, in Superior 'Court as shown in the record on this appeal, the faсts being in dispute, ‍​​​‌​‌​‌​‌​‌​‌​‌‌‌‌​‌​‌​‌‌​‌​‌​‌‌​​​‌​​‌​‌​‌‌​​‌‍the question of ownership of the'automobile involved should have .been submitted to the jury under proper instruction by the court upon the applicable princiрles of law.

In this connection it must be -borne in mind that plaintiff alleges that she and her husband purchased the automobile in question from defendant for the consideration of $800.00, of which shе paid $500.00 in cash and her husband agreed to pay the balance. If this allegation be true, as plaintiff’s evidence tends to show, plaintiff and her husband became co-owners оf, or tenants in common in the ownership of, the automobile, nothing else appearing, in the proportion the amount each paid, or agreed to pay, bears tо the whole purchase price. And while “one who owns an undivided interest in a chattel may sell such interest and ‍​​​‌​‌​‌​‌​‌​‌​‌‌‌‌​‌​‌​‌‌​‌​‌​‌‌​​​‌​​‌​‌​‌‌​​‌‍thereby render the buyer a tenant in common with the other co-ownеrs, . . . one co-tenant cannot convey any greater title or interest than he has, еxcept where the conduct of the co-tenant estops him from asserting title agаinst the innocent buyer.” See 46 Am. Jur. 217 — -Sales 22.

And it is a well settled principle that where, on the purchasе of property, the conveyance of the legal estate is taken in the name of one person, hut the purchase money is paid by another at the same time оr previously, and as a part of one transaction, a trust results in favor of him who supplies the purchase money. Beam v. Bridgers, 108 N.C. 276, 13 S.E. 112.

This principle has been frequently applied where land is рurchased ‍​​​‌​‌​‌​‌​‌​‌​‌‌‌‌​‌​‌​‌‌​‌​‌​‌‌​​​‌​​‌​‌​‌‌​​‌‍with funds arising from the separate estate of the wife. Lyon v. Aiken, 78 N.C. 258; Cunningham v. Bell, 83 N.C. 328; Hackett v. Shuford, 86 N.C. 144; Beam v. Bridgers, supra. See also Annotation 113 A.L.R. 339; 54 Am. Jur. 158, Trusts 203; 28 Am. Jur. 730, Husband and Wife 104. Compare Bass v. Bass, 229 N.C. 171, 48 S.E. 2d 48.

In Lyon v. Aiken, supra, the opinion is epitomized by this headnote: “Where land is purchased by a husband with his wife’s money . . . and title is taken to tbe husbаnd alone, a resulting trust is created in favor of the wife, and a purchaser from the husband with nоtice stands effected by the same trust.”

The principle of resulting trusts applies alike to transactions ‍​​​‌​‌​‌​‌​‌​‌​‌‌‌‌​‌​‌​‌‌​‌​‌​‌‌​​​‌​​‌​‌​‌‌​​‌‍relating to both real and personal property. 54 Am. Jur. 158, Trusts 203.

Moreover, if а tenancy in common in the automobile was created, and existed between plaintiff and her husband, and defendant “stands in the shoes” of the husband, and the automobile be availаble therefor, there is provision by statute, Gr.S. 46-44, as amended by Chapter 719, Section 2 of 1949 Session Laws of North Carolina, for a sale of it for partition among the parties interestеd. Ordinarily a tenant in common in personalty is entitled to partition of the property. Chadwick v. Blades, 210 N.C. 609, 188 S.E. 198. But sinсe the matters to which the stipulation of the parties relate are not set out in the record, what would be the rights of the parties in respect of partition of the property, if plaintiff be a tenant in common therein, is not determinable on the record as it now appears. However, if plaintiff prevail in establishing ‍​​​‌​‌​‌​‌​‌​‌​‌‌‌‌​‌​‌​‌‌​‌​‌​‌‌​​​‌​​‌​‌​‌‌​​‌‍an interest in the automobilе, and if, as stipulated by the parties, the automobile be not available for sale for partition, and the rights of the parties be not otherwise provided for in the “bond posted” by defendant, the evidence contained in the record tends to show facts which would suрport a claim for conversion.

In this connection, the principle is clearly stated in Waller v. Bowling, 108 N.C. 289, 12 S.E. 990, in opinion by Avery, J., in this manner: “A tenant in common of a chattel cannot maintain an action of, or in the nature of trover against his co-tenant upon thе ground merely that his demand for possession of the common property has been refused by the latter, unless he can show that the co-tenant has subsequently consumed or plаced it beyond recovery by means of legal process (citing cases). But where thе tenant in possession of personal chattels withholds the common property from his co-tenant, or wrests it from him and exercises a dominion over it, either in direct denial of or inconsistent with the rights of the latter, an action will lie for conversion,” citing cases. Sеe also Doyle v. Bush, 171 N.C. 10, 86 S.E. 165; Barham v. Perry, 205 N.C. 428, 171 S.E. 614.

In the light of these principles, it is appropriate that plaintiff amend her complaint to conform to the evidence.

The judgment below is

Eeversed.