*1 COURT OF APPEALS Watkins v. Watkins t-HHHI—I Conclusion
I applaud support legislative efforts to address the par- ticularly obscenity sensitive issues of and to eradicate the evils minors, I sexual but do not exploitation legislative believe pur- ends, however can poses praiseworthy, pursued by means broadly that too stifle fundamental liberties. The danger of allow- local censor ing impose his or her standard public So, in apparent. responding to the felt necessities of the time and or perceived the stated needs of the public, the legislature must legislation draft whose tentacles of proscription do not exceed constitutional commands. Neither the trial court nor this Court graft should onto the challenged judicial statutes limitations that all, will not be to the apparent citizenry. After citizens should their regulate behavior according plain meaning of precise- statutes, ly drafted not to their according guesses about saving judicial construction.
Believing that the challenged statutes are unconstitutional the particulars discussed above and that particulars those statutes cannot be salvaged judicial interpolation or the all- 14-190.1(b)(4), purpose saving clause in G.S. Sec. I voice this dis- sent, knowing the legislature try again. can CAROL WATKINS v. HATTIE MAE WATKINS ARNELL NIXON v. CHARLES WATKINS
No. 8610DC619 (Filed § —express sufficiency Trusts of house of evidence trust — support The evidence was finding sufficient to a verdict her husband held for the female defendant to an trust where husband family testified that he and at a meeting to obtain a loan to a house and to take title to the house names, their the female defendant mortgage to make all the payments, everyone, including and that plaintiff, understood that the house would be owned the female responsibility defendant and it would be her make the on the loan. OF APPEALS COURT *2 —resulting sufficiency § Trusts house of evidence trust — was sufficient for the on the issue of The evidence trust plaintiff it tended to show that and her husband to obtain where a loan names; to take title in their a house and the female defendant mortgage payments; agreed prior the transfer of title to make all of the paid closing the costs for the house the female defendant and made all the payments with assistance of two of her mortgage the sons. concurring Judge in the result. JOHNSON Judge in the result. concurs GREENE
Appeal by from entered 24 plaintiff Payne, Judge. Judgment Court, County. in District February 1986 Heard WAKE Appeals Court by was commenced proceeding
This civil when she summarily eject from magistrate to have the defendants sought Street, Raleigh, at 1011 Greenwich North premises Carolina. judgment plaintiff, appealed From the defendants magistrate’s district court. Plaintiff, to show the following: The evidence at trial tends Watkins, Watkins, is married to Charles who is defendant Carol son, Linwood, son. In Hattie and her Hattie Watkins’ house, buy wanted to but were unable obtain a loan to do so. with Hattie and Linwood discussed Carol and Charles about pur- using a home Charles’ veteran’s chasing eligibility obtain a The that a house located at 1011 parties agreed loan. Greenwich Raleigh, premises question, Street would be purchased, for the property put that the deed would be the names of Carol Charles, the purchase by would be financed a loan by obtained Carol Charles. Defendants’ evidence tends to parties agreed show that all the that Hattie would pay closing all the and that the house would mortgage payments costs and to her. Defendants’ belong evidence further tends to show that $2,000, costs of paid closing Hattie made all the mortgage daughter, with contributions from Linwood and her Arnell, repairs for all on the house. Plaintiffs paid tends to show that had that Hattie parties house and rent in the form of mortgage pay- would rent show paid ments. Plaintiffs further tends to that Hattie only eight six to months and mortgage payments made the rest of the Plaintiffs evidence payments. and Charles COURT OF APPEALS v. Watkins
Watkins also tends to show that she and Charles for the paid repairs the house. evidence, following
At the close of the issues were sub- by mitted to and answered as indicated: 1. Is held under property Carol and Charles Watkins?
Answer: Yes. 2. Is the held under Carol and Charles Watkins?
Answer: Yes.
3. Is property held under a constructive trust arising out of Watkins? fraud on the part Carol
Answer: No. amount, any, What is Carol Watkins entitled to recover of Hattie Mae Watkins for monies loaned to Hattie Watkins for the purpose making payments on the mort- gage? -0-
Answer: 24 February On the trial court judgment entered on the ver- dict, declaring that Carol and Charles Watkins “hold title to the property described the Complaint impressed a with both re- sulting an express in favor of Defendant Hattie Mae Watkins, and that Hattie Mae Watkins owns the land in sim- fee ple absolute.” 16 January On plaintiff made a motion for a trial, new which was denied. Plaintiff appealed.
M. Jean Calhoun plaintiff, appellant. Kirk, Kroeschell, Howell, Gay & defendants, T. Joseph appellees.
HEDRICK,
Judge.
Chief
[1]
By Assignment of Error No.
plaintiff contends that the trial court erred in denying her
based upon
Exceptions
Nos. 1
motion for directed verdict with
to
respect
express trust. Plaintiff
argues
was
not clear and convincing that she
for defendants
to an ex-
and Charles held
and that the issues should not have been submitted to
press trust
jury.
disagree.
uniformly
It
is
held to be the law
North
Carolina
buys
under
to
so
person
parol agreement
“where one
land
a
do
repays
money,
until he
and to hold it for another
party
for the
for whom he purchased
becomes
trustee
purchaser
land,
agreement.” Bryant
will
such an
enforce
equity
(1971) (citations
123, 129-30, 181 S.E.
Kelly, 279
omitted).
conveyed
one
an
party
Whenever land
under such
agreement
whether
this
is made at
time
con-
agreement,
before,
veyance
liams,
is created.
Wil-
Owens
Where competent
130 N.C.
trust,
duty
judge
it is the
of the
parol
is introduced to establish
and for
decide whether
to submit
issue
clear,
strong, convincing
cogent. Taylor
the evidence is
Wahab, 154
(1971), that “a Court held Supreme our by vir- all, title legal passes, in which same transaction the 591 tue consideration or at the legal of advanced before time title and not from passes, paid.” consideration thereafter Where less is at time purchase price than the entire of paid purchase, of party seeking imposition the trust must have incurred an ab to obligation part solute the remainder as a of the original conveyance. transaction at before the time of Wad Carson, dell S.E. 2d 222 The person seeking trust need imposition obligated not be lender; directly to the grantee’s it is sufficient he obligated the grantee, promise to a passes, made before title make grantee for remainder of Norris, (1985), price. Ray v. 78 N.C. App. S.E. 2d 137 disc. denied, rev. S.E. 2d 897 case, the present In there is evidence in the tending record to show that Hattie paid closing costs the house and Carol, prior agreed, to the transfer of title Charles and to pay all of the mortgage payments. There is also evidence the rec- ord tending show that she made all of the mortgage payments, with the of Lin assistance wood and Arnell. We hold that this evidence is the jury sufficient for to find a resulting arose when Charles purchased and Carol the property and that correctly denied plaintiffs motion directed ver- dict on this issue.
By Assignments of Error Nos. purportedly based on Exceptions Nos. plaintiff contends the trial court erred 1) her denying motion for new grounds trial that: 2) verdict; was justify insufficient the verdict was 3) law; contrary to manifest disregard of the court’s instructions; irregularities “the and the surprise which oc- with presentation curred of the defendant’s evidence lead to evidence which was not able to be discovered and produced at 1A-1, by plaintiff.” trial A motion for a new trial pursuant to G.S. Rule 59 is addressed to the discretion the trial and the judge, court’s thereon ruling is not reviewable on appeal absent mani- fest abuse discretion. v. (1982). Worthington Bynum Cogdell *5 478, Bynum, 2d 599 We have reviewed the record and hold that the record does not disclose that trial court abused its discretion in denying motion plaintiffs new trial. assignments These of error are without merit.
Watkins Watkins 3, of Nos. 1 on By Assignments purportedly Error and based plaintiff argues Nos. and that Exceptions and on and submitting express in issues instructions trust erred of error do not assignments exceptions trust. These resulting assign- review not heretofore discussed. These questions raise ments of are meritless. error, assignments have additional of reviewed without merit. wholly
and find them to be No error. in concur the result. JOHNSONand Greene
Judges result. concurring JOHNSON Judge summary discussion opinion up I concur in the 1, 3, on of Error Nos. based Nos. Exceptions Assignments wherein contends that the court erred submit- and 7 and resulting instructions on trusts ting express issues and and, fact, jury was did what such manner that able reach I disagree opinion to be verdicts. with the inconsistent appears already Error raise dis- questions these Assignments therefore, fully I wish to more address in the opinion; cussed of Error. Assignments these whereas, express from equity;
A
issues
the remedies available at law. It is
fundamen-
issues from
will
full
not lend its aid where a
has a
tal rule that equity
remedy at
Co. v.
complete
law.
Standard
Ins.
Jefferson
Life
(1945). Hence,
No. 8516SC1392 (Filed 17.2, reputation against §§
1. Homicide 19.1— of victim —threats defendant —not admissible prosecution by refusing err in The trial court did not a murder to admit history reputation evidence of the victim’s for violence and evidence of a the victim had threat made to defendant where defendant’s own evidence that, head, showed at least at the time of the fatal shot to the the deceased did any present appear not threat of imminent harm to the defendant or to be do- ing so. second-degree plain Homicide 26— murder —instructions on malice —no plain prosecution by The trial court did not commit error in a homicide in- jury structing second-degree killing in the final mandate that murder is a repeatedly without malice where the trial court had they instructed the guilty must find the defendant with malice in order to him acted find second-degree murder and instructed the that the defendant could voluntary manslaughter prove guilty of more than no the State failed to he acted with malice. heinous, second-degree especially Criminal Law atrocious murder — or cruel by finding second-degree err The did not murder was heinous, especially atrocious or cruel where defendant fired two shots from scrotum, range groin, leaving close into the victim’s four holes in the then