95 N.C. 32 | N.C. | 1886
(Clement v. Clement,
The defendant denied the material allegations of the complaint.
At the trial, proper issues were submitted to the jury. The plaintiff introduced several witnesses, including himself, and the defendant testified in his own behalf, denying the main allegations of the plaintiff.
The defendant asked the Court to instruct the jury, that there was not sufficient evidence to go to the jury or to warrant the Court in declaring the defendant a trustee.
The Court declined to give the instructions, and the defendant excepted. There was verdict and judgment for the plaintiff, and the defendant appealed. We are unable to see any ground upon which the exception (34) can be sustained. In our judgment, there was evidence competent and abundantly sufficient to go to the jury to prove the material allegations of the complaint put in issue by the answer, if the jury believed it. Several witnesses testified directly and expressly to the agreement as alleged, and others, to facts and circumstances that tended to prove the same thing.
It is not denied that the agreement is one that must be upheld, and may be enforced if it exists, and being so, it is quite clear that it may be proven by any competent evidence, and certainly by the evidence of *56 witnesses, who testify that they had personal knowledge of its existence and what it was.
There is nothing in the nature of a parol trust in respect to land in this State, that makes it necessary to establish it by a particular or peculiar sort of evidence — it may be done by any competent evidence that tends to prove it, whether it be declarations in part, or facts and circumstances, or the positive testimony of witnesses, or written evidence.
The defendant's counsel insisted on the argument, that the simple declarations of the defendant were not sufficient evidence of the alleged parol agreement on his part to purchase the land in question, and afterwards convey a specified part of it to the plaintiff, upon the payment of the price agreed upon. This may be true, but the plaintiff did not rely mainly, if at all, upon the declarations of the defendant to prove the agreement; he relied upon the testimony of witnesses, who testified positively that within their own knowledge, respectively, it was made substantially as alleged.
It was further insisted, that in order to establish such parol trust as that alleged, the plaintiff must prove facts and circumstances dehors thedeed made to the defendant, inconsistent with his purpose to make an absolute purchase of the land for himself, and the counsel relied uponClement v. Clement,
The case cited and other like cases are in nowise inconsistent with what we have here said. These cases simply decide, that cases of parol trusts, in some of their features, like that sought to be established by this action, cannot be proven by the simple declarations of the party to be charged; that in addition there must be evidence of facts and circumstances or acts dehors the deed, absolute upon its face, made to the purchaser of the land, inconsistent with a purpose on his part to purchase absolutely for himself.
They do not, however, decide that such parol trusts must necessarily be so proven, or proven by a particular kind or standard of evidence, or that they may not be proven by any competent evidence, such as that of witnesses who can testify expressly that the parties interested agreed, for proper consideration, upon such a trust. *57
The question whether more than a preponderance of evidence is necessary to warrant the jury in rendering a verdict in favor of such a trust as that in question, is not raised by the exception. It is clear that there was evidence sufficient to go to the jury, and if they believed it, it was abundantly adequate to warrant the verdict they rendered. There is no error. Judgment affirmed.
No error. Affirmed.
Cited: Harding v. Long,
(36)