McWhirter v. . McWhirter, 71 S.E. 59

McWhirter v. . McWhirter

71 S.E. 59

N.C.

1911

Check Treatment

Waleer, J.

Tbis action was brought by tbe plaintiff, as administrator of W. C. McWhirter, for tbe purpose of having sold certain land, which is described in tbe complаint and alleged to belong to bis estate, for tbe payment of dеbts. Tbe defendant, Mrs. R. J. McWhirter, answered tbe complaint and averrеd that tbe land did not belong to W. C. McWhirter, although be bad tbe legal title thеreto, for that be bad bought tbe same with her money and for her benеfit, and be therefore held it in trust for her. An issue ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍was submitted to tbe jury, as to tbe еxistence of tbe alleged trust, express or resulting, and tbe verdict was in favor of Mrs. McWhirter, tbe jury finding that W. 0. McWhir-ter bad purchased the lands with her funds аnd held tbe legal title in trust for her, having taken a deed for tbe land to himself, instead of to her, as be should have done. Judgment was entered upon the verdict and the plaintiff brings tbe case here by appeal to review tbe rulings of 'the Court, which be deems erroneous.

It is necessary to discuss but a single question, as there is an error in tbe chargе of tbe court ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍which entitles tbe plaintiff to another trial. Tbe cоurt at first charged tbe jury correctly that *147 as the deed to W. 0. McWhirter was absolute in form, and upon its face conveyed' the legal аnd equitable ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍title to him, the defendant must establish the trust by clear, strong and convincing proof. Lehew v. Hervett, 138 N. C., 6; Taylor v. Wahab, 154 N. C., 219; Cobb v. Edwards, 117 N. C., 253. If the learned judge had stopped there, thе charge, in this respect, would have been free from crrpr, but he afterwards told the jury when instructing them again upon the quantum of proof required to establish the trust, that a preponderance of thе evidence in favor ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of it is sufficient. These two instructions were conflicting, and the jury are not supposed to be capable оf deciding, as between them, which is the correct one, and we must, therefore, assume that they were influenced’in coming to a verdict by the erroneous one. Edwards v. R. R., 132 N. C., 99 (Anno. Ed.); Cressler v. Asheville, 134 N. C., 314; Williams v. Haid, 118 N. C., 481; Tillett v. R. R., 115 N. C., 662; Edwards v. R. R., 129 N. C., 78; Jones v. Insurance Co., 151 N. C., 56. For this error a new trial is ordered.

As to the trust, the law is well settled. “Where land is bоught with the money of one person and is conveyed to anothеr, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the latter is trustee for the lender to the extent of the money sо paid, without any express agreement to that effect.” Holden v. Strickland, 116 N. C., 185. But in Clements v. Insurance Co., at this term, we said that there is a strong presumption in favor of the corrеctness of a deed or other instrument as written and executed, and this fair and reasonable presumption will prevail, unless the pаrty who alleges that it does not express the truth overcomes the presumption and shows to the contrary by satisfactory evidenсe which is clear, strong and convincing. It is for the jury to say whether the evidence is of this character. Lehew v. Hewett, supra. The rule which calls for that kind of еvidence in such a case was adopted and was necеssary for the safety of titles, and in order that contracts, deeds аnd other solemn instruments should not be lightly set aside or changed. The doctrine, as we have seen, has been extended and applied to a case in which it is attempted to show a parol trust, and thus virtually to nullify the deed, or, if the entire beneficial interest is not claimеd, to amend or reform it in some way.

*148 Tbe error of tbe court as tо tbe quantum of proof is to be found in tbe defendant’s third prayer for instructions, wbicb was given to tbe jury. Tbe judge modified tbe first and second prayеrs in tbis respect and stated tbe correct rule, but inadvertently, we suppose, failed to amend tbe third prayer. However tbis may be, tbe jury were left with two conflicting instructions, and may have been misled by them. There are other errors assigned by tbe plaintiff, but we will not discuss them, as they may not be presented again.

New trial.