42 S.E. 547 | N.C. | 1902
The plaintiff and defendant Carrie were married in 1885, when the plaintiff was only twenty-one years old and just out of school. Soon after this marriage the plaintiff inherited about $60,000 upon the death of his uncle, Joseph Flanner. This estate was received in money and bonds and deposited by the plaintiff in the Wilmington Bank, of which his father-in-law, William Larkins, was president. Soon after receiving the estate said Larkins told the plaintiff that (156) certain property on "Front street" in the city of Wilmington was to be sold very soon, that it would be a good investment, and advised the plaintiff to buy it. The plaintiff then instructed said Larkins, who had control of his money,to buy it for him, the plaintiff. At the sale Larkins bought the property and paid for it out of the plaintiff's money, but had the deed therefor made to his daughter Carrie, then the wife of the plaintiff. The plaintiff knew that Larkins bought the property and paid for it out of his money on deposit in the bank, and thought it was bought for him, and did not know the deed was made to defendant Carrie until it was registered. When the plaintiff discovered the deed was made to defendant Carrie *117 he complained of it and told Larkins that he told him to buy the property for him, and he (Larkins) had the deed made to his daughter Carrie, when Larkins said it was all the same, what a man's wife had was her husband's, and he would have the use and control of it the same as if the deed had been made to him. The plaintiff was young and without business experience; had just married the daughter of Larkins; was living in his family and, having confidence in Larkins, he made no further complaint as to the manner in which the deed was made. But he never did consent to its being made to his wife. He and the defendant Carrie continued to live together as man and wife until 1899, and the property being rented he collected and used the rents arising therefrom. In 1899 the defendant Carrie notified the tenants not to pay any more rents to him, but to pay them to her, and he has received no rents therefrom since that time. The defendant Carrie very soon after giving this notice to the tenants went to South Dakota where she procured a divorce from him, and soon after procuring said divorce married Henry W. Butler, her co-defendant.
This statement of facts is made principally from the plaintiff Flanner's own testimony, corroborated by that of E. H. Freeman, G. L. Morton and others. And it is not (157) denied but what the defendants offered evidence tending to rebut or contradict a part of this evidence. But if the plaintiff's evidence is believed it makes a prima facie case for the plaintiff, and as the jury may believe it (and in this case did believe it) there was no error in his Honor's ruling refusing the defendant's motion to nonsuit the plaintiff as to the "Front street property," this being the property involved in this appeal.
The court submitted three issues, as follows:
1. Was the land described in article three of the complaint purchased with the money of the plaintiff?
2. If so, was the deed to the defendant made to it without his knowledge or consent?
3. Is the plaintiff's cause of action barred by the statute of limitations?
The jury answered the first and second issues in the affirmative and the third in the negative. This, it seems to us, settles the case, unless there were such errors committed on the trial as to vitiate the findings of the jury.
It is admitted by the defendants that the general rule is that where property is bought with the money of another and the deed made to another person, without the knowledge or consent of the party furnishing the money, the holder of the deed will be declared trustee for the party who furnished the money. *118 Lassiter v. Stanback,
But it is further contended by the defendants that if the plaintiff ever had this right it is barred by the lapse of time and the statute of limitations. But in this case neither was the plaintiff nor the defendant Carrie in the actual possession pedis of the property, it being actually occupied by tenants. And according to the plaintiff's testimony, corroborated by the tenants, the plaintiff made contracts for renting and received and receipted for the rents, and used them for his own purposes; and we must presume the jury believed this evidence. The plaintiff, therefore, was as much and even more in possession than was the defendant Carrie. And where they were both in possession the statute of limitations does not run. Faggart v. Bost and Norton v. McDevit, supra. So the defendants must fail on the plea of the statute of limitations.
There are some of the exceptions as to evidence relating to the defendant Carrie's going to South Dakota and obtaining a divorce and marrying the defendant Henry that were irrelevant and should not have been allowed. But we fail to see what bearing it had on either of the issues or how it did or could have affected their findings on the issues submitted. We are therefore unwilling to grant the defendants a new trial for these errors, which we think in no way affected the verdict on the issues submitted. While we have not discussed each one (159) of the many exceptions of the defendants, we have carefully examined them all and find no error for which we can give the defendants a new trial.
Affirmed.
Cited: Norcum v. Savage,
