86 S.E. 622 | N.C. | 1915
The action was instituted by Mrs. Elizabeth Glenn against her husband, John S. Glenn, defendant, and the original plaintiff having died pending suit, her heirs at law, children by a former husband, were made parties plaintiff and, by leave of court, filed an amended complaint, basing their right to relief on allegations that defendant, their stepfather, had bought and taken a deed for the property at foreclosure sale under an agreement that he was to buy said property for his wife, and, second, that he had bought and paid for the property at such sale with the money of his said wife.
Defendant having, in his answer, denied these allegations, the cause was submitted on the following issues:
1. Did the defendant enter into an agreement with his wife, Elizabeth Glenn, whereby he bound himself to bid in for her the lot of land mortgaged to Mrs. McVea and sold under power of sale in said mortgage, and to take title thereto to the said Elizabeth Glenn? Answer: "Yes."
2. Was the land conveyed by Mrs. McVea, mortgagee, to defendant, paid for by the defendant with money belonging to Elizabeth Glenn? Answer: "Yes."
On evidence in support of the allegations and denial, the court charged the jury that the burden of the issues was on the plaintiffs and they were required to establish them by the greater weight of the evidence, and not by clear, strong and convincing proof.
It is the established position in this State that where a defendant holds under a deed formally conveying to him the legal title to real property, and a claimant is seeking to correct a mistake in the instrument or annex a condition to it or engraft a trust upon it, he is required to make out his claim by clear, strong and convincing proof (Cedar Works v.Lumber Co.,
The distinction is very fully and satisfactorily discussed by AssociateJustice Avery, in Harding v. Long,
From the facts in evidence as they now appear, the defendant has the legal title to the property in controversy, formally conveyed to him by written deed, pursuant to foreclosure sale, and the purpose of the action is to engraft a trust upon this title in favor of plaintiffs, children and heirs at law of Mrs. Glenn, deceased. The case, in our opinion, comes under the principle sustained in Ely v. Early, supra, and that line of cases, and plaintiffs are required to establish their allegations by clear, strong and convincing proof.
For the error indicated, there must be a new trial of the cause, and it is so ordered.
New trial.
Cited: Ray v. Patterson,