71 S.E. 59 | N.C. | 1911
This action was brought by the plaintiff, as administrator of W. C. McWhirter, for the purpose of having sold certain land, which is described in the complaint and alleged to belong to his estate, for the payment of debts. The defendant, Mrs. R. J. McWhirter, answered the complaint and averred that the land did not belong to W. C. McWhirter, although he had the legal title thereto, for that he had bought the same with her money and for her benefit, and he, therefore, held it in trust for her. An issue was submitted to the jury as to the existence of the alleged trust, express or resulting, and the verdict was in favor of Mrs. McWhirter, the jury finding that W. C. McWhirter had purchased the lands with her funds and held the legal title in trust for her, having taken a deed for the land to himself, instead of to her, *120 as he should have done. Judgment was entered upon the verdict and the plaintiff brings the case here by appeal to review the rulings of the Court, which he deems erroneous.
It is necessary to discuss but a single question, as there is an error in the charge of the court which entitles the plaintiff to another trial. The court at first charged the jury correctly that as the deed (147) to W. C. McWhirter was absolute in form, and upon its face conveyed the legal and equitable title to him, the defendant must establish the trust by clear, strong and convincing proof. Lehew v.Hewett,
As to the trust, the law is well settled. "Where land is bought with the money of one person and is conveyed to another, the latter is trustee for the lender to the extent of the money so paid, without any express agreement to that effect." Holden v. Strickland,
The error of the court as to the quantum of proof is to be (148) found in the defendant's third prayer for instructions, which was given to the jury. The judge modified the first and second *121 prayers in this respect and stated the correct rule, but inadvertently, we suppose, failed to amend the third prayer. However this may be, the jury were left with two conflicting instructions, and may have been misled by them. There are other errors assigned by the plaintiff, but we will not discuss them, as they may not be presented again.
New trial.
Cited: Ray v. Patterson,