117 N.C. 244 | N.C. | 1895
As the argument developed the fact that intelligent counsel differ widely in the interpretation of our own adjudications upon the ¡-ubject of parol trusts, especially as to the nature and quantum of proof necessai’3r to set them up, it is perhaps well to recur to first principles and begin at the foundation the discussion of the doctrine that has been built upon them.
Judge PeaesoN in Wood v. Cherry, 73 N. C., 110, laid down the rule that trusts couhl be created only in one of four modes, viz., either by—
1. Transmission of the legal estate where a single declaration will raise the use or trust.
2. A contract based upon a valuable consideration to stand seized to the use or in trust for another.
3. A covenant to stand seized to the use of or in trust for another upon good consideration.
4. Where the court by its decree converts a party into a trustee on the ground of fraud.
Where it is proved satisfactorily that the pm'chaser at a judicial sale of land agreed with another previously in contemplation of, or at the time of bidding it off that he would buy and hold it when bought subject “to the right of the latter to repay the purchase money and demand a recon-veyance, it has been repeatedly held by this Court that the beneficial interest to which the agreement relates passes with the transmutation of the leual estate, because there is no such requirement in our statute as that contained in 29 Car., II, that déclarations of trust shall be manifested and proved by some writing. Shelton v. Shelton, 5 Jones Eq., 292; Pittman v. Pittman, 107 N. C., 159; Clonenger v.
It is contended for defendant that if there is evidence tending to prove an agreement, it is not sufficiently strong or sufficient in quantum to show that it was made before or at the time of the transmutation of the legal estate, nor is it sufficiently explicit in pointing out the cestuis qu>e truxt for whom the purchase was made.
Edward C. Cobb, one of the plaintiffs testified that he was about 19 years old when he heard his brother and co-plaintiff, James H. Cobb, who had been appointed by the will of Devereux-Cobb guardian of the witness and the other plaintiff, his brother C. E. Cobb, asked W. H. Edwards if he would buy the land, and that Edwards said rather
Haywood Edmundson “thought that Edwards told him, before, but knew he told him after the sale that he would be willing for the heirs to have it lack if they would pay his money and interest.” Alfred Sumner testified that Edwards told him after the sale that Janies Cobb- kept coming to him to buy the land and he finally agreed to buy, and if they would pay the money hack, he would convey the land lack.
Besides, several other witnesses not only testified to subsequent declarations of Edwards that he had bought for
We think that the testimony taken as a whole was sufficiently explicit (if strong enough), to-show on the part, of W. TI. Edwards as well as on the part of J. IT. Cobb acting for himself and his two wards, an understanding that the land was to be redeemed or bought haolc by the the owners holding under the will according to their several interests. The inference might be plainly drawn that J. H. Oob'b always spoke for himself and his two wards as it was his duty to do. It crops out also in the testimony that the wife of Edwards joined her brothers in the request to buy and that, the object was to l<eep it in the family. When the plan of paying for it out of the rents was adopted, if we believe the testimony, the object was to make the land relieve the incumbrance with the obviously just result of restoring it to those who before owned it.
Admitting the principle contended for (1 Perry on Trusts, Sec. 77) we think that the proof tends to show with sufficient distinctness who were to be beneficiaries of the trust, if created.
In addition to the direct evidence that there was a prior agreement to buy and allow the owners to redeem, the plaintiffs offered testimony tending to show subsequent
Without further recital of the evidence it may be stated in general terms that there was testimony tending to diow an agreement made by Edwards with his wife and her brothers before the sale and that the terms of it were reiterated in a declaration made-to James Edwards a moment before he was declared the highest bidder. The fact, proved by several witnesses that Edwards stepped aside and had some conversation, while the crier was offering the land, and that James had made one or more bids before, but none afterwards, tends strongly to corroborate the testimony as to what passed between them. While his subsequent declarations of the nature of the mutu il understanding with his brothers-in-law and his wife would not of themselves have been sufficient to engraft the trust on the deed made to him, they were corroborative of the evidence that there was such an agreement existing at the time of the sale and therefore enforcible in equity. Hamilton v. Buchanan, 112 N. C., 463. The testimony that Edwards acknowledged the possession of J. IT. Cobb for himself and co-tenants in common by directing the lessees of the land to apply to him for leases, and claiming only that the rents should be applied to the discharge of the debt and that he suffered J. H. Cobb to turn over the management to his brother, if believed, was a pregnant circumstance outside of the mere declarations tending to show the existence of the agreement at the time of the sale. The act of exercising dominion by the persons claiming to be the beneficiaries under the trust, with the as-ent and under the directions of the alleged trustee, and the
When it appears to the court that testimony has been admitted tending to prove an agreement antecedent to and in contemplation of the sale or cotemporaneonsly, so that it exists when purchase is made and that testimony has also been offcrred tending to prove independent acts or admissions on the part of the jrarchaser inconsistent with the claim of absolute ownership, it is not the province of the court but of the jury to weigh the testimony and determine, as in other cases, where the quantum of evidence is fixed by law, whether it is sufficient according to the requirement of the law as stated to them by the court- The court may declare that there is not evidence of the kind required by law to entitle the plaintiff to the relief sought, but were the judge to pass upon the credibility of a M'itness on account of interest or intelligence or the intrinsic character of his testimony, or upon the weight to be given to the evidence of one or all, where the testimony if believed, might be sufficient to establish a right to the relief asked, he would invade the province of the jury since the Constitution confers upon the courts no jurisdiction to pass upon the facts in any such case. Where the -Judge is not at liberty to say that there is no evidence of the kind required by the rule of law prescribed in such cases, it is his duty to tell the jury that the law requires clear, strong and convincing proof to show the agreement as well as the' subsequent acts or admissions and that it is their province to say whether that offered does so convince them of its truth.
In Berry v. Hall, 105 N. C., 154, following Ferral v. Broadway, 95 N. C., 551, and in Helms v Green, 105 N. C., 251, this Court has declared that expressions used by
The Judge has no more right when the testimony, if believed, is sufficient to be submitted to the jury to determine in the trial of civil actions what is strong, clear and convincing proof, than he has in the trial of a criminal action to express an opinion as to whether guilt has been shown beyond a reasonable doubt. In Hemphill v. Hemphill, 99 N. C., 436, it was held that where the court was not asked to pass upon the question whether there was evidence dehors a deed such as would warrant its submission to the jury to show mistake in its execution, no exception could be afterwards taken to its sufficiency.
If, as counsel insisted, there is any language used in the obiter statement of the rule in Harding v. Long, 103 N. C., 1, or in Ely v. Early, 94 N. C., 1, repugnant to what we have said, sueh expressions must be considered so far modified as to bring those cases into perfect harmony with the law as it has been formulated in this case. The judgment of the court below is affirmed.
Affirmed.