Williams v. . McLean

19 S.E.2d 867 | N.C. | 1942

BARNHILL, J., concurring.

STACY, C. J., dissenting.

WINBORNE and DENNY, JJ., concur in dissent. Rehearing was allowed in order that the question of plaintiff's claim to certain personal property might be considered. The action was instituted primarily to establish a constructive trust in favor of plaintiff as to 13 acres of land, title to which had been conveyed to one of the defendants. Judgment of nonsuit was entered in the court below and affirmed in this Court (220 N.C. 504), on the ground that plaintiff's evidence failed to establish his cause of action. The debate here was confined to that question. In affirming the judgment of nonsuit the fact that plaintiff had also alleged and offered some evidence tending to show that he had purchased the personal property described, and that defendants had wrongfully removed the same, was not considered.

Upon consideration of the petition to rehear we adhere to our former decision that plaintiff's cause of action to establish a trust was not made out, and the nonsuit on that phase of the case was properly entered. However, we think he was entitled to proceed on his allegations with reference to the personal property. While the amount involved is comparatively small, there is some evidence, taken in the light most favorable to him, tending to support his claim to this property. For the purpose of determining the question of plaintiff's right to recover the personal property described in his complaint, the judgment of nonsuit, in so far as it affects this phase of the case, only, is stricken out, and the case remanded to the Superior Court of Robeson County for further proceeding in accord with this opinion.

Petition allowed in part.