90 S.E. 304 | N.C. | 1916
The plaintiff on 6 March, 1911, executed a deed in fee simple to the defendant, his son, with full warranties, for the land in dispute for the recited consideration of $2,000, it being recited in the deed that the grantee assumed responsibility for a mortgage on said land due to one Barnes, and agreed to settle on the land. The defendant entered into immediate possession of the premises and has been in continuous possession thereof ever since, claiming the whole in fee simple under said deed.
(329) This action is by the plaintiff, claiming that there was an oral trust at the time of the deed that the grantee would collect the rents as they fell due and apply them to the mortgage and other indebtedness due said Barnes, and after such payment the plaintiff would sell the land and give the defendant part proceeds of the sale. This is denied in the answer, which avers that the defendant has satisfied the mortgage to Barnes as set out in the deed, and avers that the only collateral agreement was that the plaintiff, being under indictment, sold and conveyed the land in fee simple to the defendant upon payment of $25 cash and his assumption of plaintiff's indebtedness to Barnes, which aggregated over $800, and responsibility on the bond for the plaintiff's appearance to answer the criminal charge and to assume the care and support of plaintiff's youngest daughter, then 9 or 10 years of age, and that this was the full consideration to be paid, and that it is a full and fair value of the said land, and that the defendant has strictly complied with said agreement in that he has paid the said mortgage to Barnes and a large part of the other indebtedness to Barnes, which he assumed and is now engaged in paying off; that he discharged the liability for the default of the plaintiff upon the bond for his appearance on the criminal charge, the plaintiff having fled to another State; that he paid the $25 cash and has cared for and supported said infant at his own expense, the fair value of which is $125 per year, and will continue to do so; that he took possession of the lands in good faith under said fee-simple deed, and has placed valuable improvements on the land in the sum of $600, and has otherwise improved and made the land more valuable. In short, so far as the consideration of $2,000 is concerned, the defendant pleads payment in part and his willingness to discharge the rest, but denies the allegation of a parol trust as to the land.
The plaintiff is estopped by his deed from setting up a resulting trust on account of alleged failure of consideration. This question has been discussed, with full citation of authorities, by Hoke, J., in Gaylord v.Gaylord,
In Campbell v. Sigmon,
In this same case, Walters v. Walters,
The consideration recited being not part of the conveyance, its amount and whether paid or not can be contradicted, but the conveyance cannot be changed, altered, or contradicted by a parol agreement, nor, in the absence of proof of fraud, mistake, or undue influence, can a deed solemnly executed and proven be set aside by parol testimony.
The grantor cannot set up a parol trust in his own favor against the grantee. Nor, treating this action as one to recover a part of the purchase money should the land be thereafter sold, can the plaintiff recover. In this aspect the case would be very similar to Sprague v. Bond,
In Brown v. Hobbs,
The ruling in Gaylord v. Gaylord,
The demurred ore tenus to the complaint "because it did not state a cause of action" was properly sustained.
Affirmed.
Cited: Thomas v. Carteret,