80 S.E. 430 | N.C. | 1913
Action to establish a parol trust in a tract of land.
There was allegation with evidence on part of plaintiff tending to show that in March, 1897, G. T. Jones, now deceased, by deed of bargain and sale, reciting a valuable consideration paid, in the sum of $200, conveyed to his daughter, Julia, a valuable tract of land, the tract in controversy, and at the time of conveyance made no consideration was paid, and the daughter took and held the land with the understanding and agreement existent at the time, that she would hold the land in trust for the grantor and then for his children, the present plaintiff and defendants; that said G. T. Jones having died, the defendant repudiated the said trust, insisting that the deed conveyed to her an absolute estate, and the present action was instituted to enforce the said trust in favor of the other children.
The allegations of complaint were fully denied in the answer, and motion for nonsuit was duly made and overruled. *257
The following issues were submitted and verdict rendered:
1. Was there a parol agreement between G. T. Jones and the defendant Julia E. Jones, at or before the delivery of the deed of 19 March, 1897, to the effect that said Julia E. Jones would accept said deed and hold the lands therein described for the benefit of said G. T. Jones during his lifetime? Answer: No.
2. Was there a parol agreement between G. T. Jones and the defendant Julia E. Jones, at or before the delivery of the deed of 19 March, 1897, to the effect that said Julia E. Jones would hold the lands therein described for the benefit of the children of G. T. Jones, after his death, to wit, W. C. Jones, G. H. Jones, Julia E. Jones, and Tennie Jones? Answer: Yes.
3. Is plaintiffs' action barred by the statute of limitations? Answer: No.
4. What is the annual rental value of said land? Answer: Nothing.
Judgment on verdict for plaintiff, and defendant Julia E. Jones appealed. (322) After stating the case: It was earnestly insisted for defendant, as we understood the position, that a trust of this character could not be engrafted on a deed of bargain and sale, because the deed itself contained a declaration of the use in favor of the grantee, and, being in writing, the same could not be contradicted by parol evidence.
2. That the recital of a valuable consideration of $200, contained in the written deed, would prevent the establishment of such a trust by parol; but a long series of authoritative decisions in this State are against defendant on both of these positions.
In Gaylord v. Gaylord,
In Gaylord's case the effort to establish the trust in favor of the grantor in the deed failed, the controlling principle on that question being stated as follows: "Upon the creation of these estates, however, our authorities seem to have declared or established the limitation that *258 except in cases of fraud, mistake, or undue influence, a parol trust, to arise by reason of the contract or agreement of the parties thereto, will not be set up or engrafted in favor of the grantor upon a written deed conveying to the grantee the absolute title, and giving clear indication on the face of the instrument that such a title was intended to pass."
It was no doubt in deference to this principle that a verdict (323) on the first issue was rendered in favor of defendant, that issue being addressed to the interest alleged in favor of G. T. Jones, the grantor in the deed; but as to the children who were not directly parties to the instrument, it is well established that a parol trust of this kind may be established by parol declarations cotemporary with the making of the deed or prior thereto, and existent at the time the same was executed and title passed. See cases referred to of Sykes v. Boone, and Avery v. Stewart, supra, and Wood v. Cherry,
In reference to defendant's position that the deed itself contained a written declaration of the use in favor of the grantee: in former times interests of this kind ordinarily arose and were made effective in conveyances at common law and operating by transmutation of possession as in case of feoffments, etc.; but as early as 1715 and by subsequent statutes it was provided that "written deeds conveying land in this jurisdiction, when properly proved and registered, shall operate to all intents and purposes as if such title had been made by fine, common recovery, livery of seizin, attornment, or in any other ways used and practiced within the kingdom of Great Britain." Laws 1715, ch. 7, sec. 2; 1 Potter's Statutes, p. 105; Revised Statutes, ch. 37, sec. 1; present Revisal, sec. 979.
Since the enactment of this statute, the courts, in administering the doctrine of parol trusts, have treated these deeds of bargain and sale and other written instruments formally conveying land, when properly proved and registered, as feoffments, and have upheld these interests when established by proper testimony.
In Rowland v. Rowland,
And, on the second position contended for by defendant, that the recital of a valuable consideration of $200 in the written deed should prevent the enforcement of the trust as claimed, it was held in Barbeev. Barbee,
No error.
Cited: Trust Co. v. Sterchie,
(326)