Hemphill v. . Hemphill

Feb 5, 1888
Versions:99 N.C. 436
6 S.E. 201
Davis, J.,

(after stating the case). The Judge accompanies the case sent to this Court with the remark: “I have stated the evidence in full, at the request of the parties and because of the defendant’s motion for judgment non obstante ■veredicto,” and the learned counsel for the defendant say, with candor, that the request was made with the view and purpose to ask this Court to review the evidence and declare it insufficient to disturb the defendant’s deed, as they insist a Judge sitting as a chancellor would have done under the old practice.

We are referred by counsel to Ely v. Early, 94 N. C., 1, and numerous other cases, in which it is held that a mistake in a deed, or an}r other instrument solemnly reduced to writing, ought not to be corrected upon slight evidence or upon a mere prepondeiance of evidence, and that a purchaser taking to himself a deed absolute on its face, as in Clement v. Clement, 1 Jones Equity, 184; Briggs v. Morris, Ibid., 193; Campbell v. Campbell, 2 Jones Eq., 364, and numerous other cases, ought not to be converted into a trustee except upon clear and full proof, supported by facts and cir- *441 cumstanees dehors 'the deed, inconsistent with the idea of an absolute purchase for himself.

In Ely v. Early, supra, in which, among things, it was sought to correct a mistake in a deed, it was held to be error in the Court to charge the jury, that it was sufficient to show the mistake “by a preponderance of evidence,” but neither in that nor in any other case, we apprehend, has it been held under our present system, when issues of fact have been submitted, without-objection, to a jury, that this Court can review and reverse or modify the finding of fact by the jur7-

The contrary was here expressly held in Shield v. Whitaker, 82 N. C., 516, in which case the Chief Justice said: “The verdict of a jury may be set aside in a proper case, but it cannot be reformed or amended,” and following this case is Leggett v. Leggett, 88 N. C., 108, in which Judge Ruffin says: “But however these questions — (the right of parties to have their causes, when purely of an equitable- nature, tried by the Court without the intervention of a jury, and the effect of the constitutional amendment of 1875, Art. IV, § 8, upon the jurisdiction of this Court,) — may be ultimately decided, it will never, we surmise, be held to be law that a party who has, of his own accord, accepted a trial by jury, can insist upon having the same facts passed upon by the Court.”

Assuming, and such we think is the law, that a mistake in a deed cannot be corrected, or that a deed absolute on its face ought not to be converted into a trust, upon a mere preponderance of evidence, or without some fact dehors the deed, inconsistent with the idea of absolute ownership, but only upon such full proof as in the old Court of Equity would satisfy a Judge, yet when issues are submitted to a jury, and on the trial no exceptions are taken to the evidence or to the charge of the Court, and no instructions in relation thereto asked, the finding of fact by the jury cannot be reversed by the Court. The Court may be asked to instruct *442 the jury as to the degree of evidence necessary to show the mistake or establish the trust, and it is the duty of the Court to give such instructions. Such instructions were given in regard to the existence of a lost deed in Loftin v. Loftin, 96 N. C., 94, and if improper instructions are given, this Court may review and correct them, as was done in Ely v. Early, supra; but we cannot review the evidence and reverse the finding of the jury. The candid and able counsel for the defendant could refer us to no precedent for this, and hence we. have not deemed it necessary to set out the evidence which we were asked to review. McMillan v. Baker, 85 N. C., 291.

It is proper to say, in regard to the position taken by counsel, that the alleged parol agreement should have been shown by other testimony than the mere declaration of the defendant, aside from the facts of possession, payment of taxes, &c., of which there was evidence. It was said in Smiley v. Pearce, 98 N. C., 185: “The declarations held to be insufficient, themselves, to show a trust which a Court of Equfiy will enforce, are such as are but admissions of a trust antecedently created, but do not include such as create and annex the trust to the legal estate.”

The defence, that the plaintiff’s demand was stale and barred by the statute of limitations cannot be maintained; as to the latter, there was no issue, and it is not insisted upon in this Court, and the former is met by the relations of the parties, and the fact, not controverted, that the plaintiff has been all the time in possession. Stith v. McKee, 87 N. C., 389; Mask v. Tiller, 89 N. C., 423.

The fourth exception cannot be sustained. The alleged variance is not pointed out, and there was evidence, upon the sufficiency of which, for the reasons already stated, we do not pass.

There is no error.