Wilmington Furniture Co. v. Cole
178 S.E. 579
N.C.
1935
Check Treatment
BeogdeN, J.

The three primary and determinative questions of law presented by the appeal are:

1. Was there competent evidence of a parol trust?

2. Was such trust abandoned and the title to the property revested in Henderson Cole prior to his death?

3. Is the plaintiff precluded by the principle of estoppel from claiming title to the property?

The various methods of creating trusts were first epitomized in Wood v. Cherry, 73 N. C., 110. This case is the original ancestor of numerous offspring disclosed by subsequent decisions. However, the ancestor in clarity of concept and expression is still the peer of any of its legal сhildren. It has been held that no ‍​​​‌‌​‌​‌​‌‌‌‌‌​‌​​‌​​‌‌‌​‌​​​‌‌‌​​‌​‌‌​‌‌‌​​​​​‍particular form of words is necessary in order to create a parol trust, and that an oral declaration of trust, “made contemporaneоusly with the transmission of the title, may be established, even without a consideration.” Lefkowitz v. Silver, 182 N. C., 339, 109 S. E., 56; Williams v. Honeycutt, 176 N. C., 102, 96 S. E., 730; Blackburn v. Blackburn, 109 N. C., 488, 13 S. E., 937; Ferguson v. Haas, 64 N. C., 772. In the Ferguson case, supra, this Court said: “Therefore, evidence of the acts, dealings, and declarations of the parties becomes competent to ascertain the nature and limits of the trust which is to be attached to the legal estate.” It was also held in Williams v. Honeycutt, supra, that the declarations of a purchaser “madе after the sale and transmission of legal title were competent to prove the previous agreement.”

The chief evidence as to the declarations of Henderson Cole at the time of transmission of legal title to 208 N. Front Street was contained in the testimony of Thomas E. Cooper, president of the grantor bank. Mr. Cooper testified over objeсtion that Henderson Cole told him at the time of acquiring the title that it was his purpose to purchase the property for the plaintiff Wilmington Furniture Company. The inter- *845 veners assert that the witness should not have been allowed to state the “purpose” of Cole in purchasing the property. Obviously, the word was used to designate for whom Cole was acting in the transaction, аnd hence the declaration was competent.

While there was abundant evidence upon which the jury might have found that no parol trust existed, nevertheless there was compеtent evidence ‍​​​‌‌​‌​‌​‌‌‌‌‌​‌​​‌​​‌‌‌​‌​​​‌‌‌​​‌​‌‌​‌‌‌​​​​​‍of such existence, and the trial judge properly submitted the issue to the jury. Therefore, the first question must be answered “Yes.”

The jury also found in response to the second issuе, upon competent evidence, that the plaintiff furnished the consideration for the conveyance, and it is thoroughly settled that the payment of the purchase money raisеs a resulting trust in favor of him who furnishes or pays the purchase money, “unless a contrary intention or a contrary presumption of law prevents.” Tire Co. v. Lester, 190 N. C., 411, 130 S. E., 45; Wise v. Raynor, 200 N. C., 567, 157 S. E., 853. There was abundant evidence, of cоurse, upon which the jury could have answered the second issue “No.”

The second question of law raises the question as to the evidence or means of proving or establishing the abandonment of a trust. The plaintiff corporation was owned and controlled by the family of Henderson Cole. He organized the corporation, managed it, directed its policy, finаnced its operations when necessary, and expanded it by wise management from its infancy until it became an important business concern. There is no evidence in the record that Henderson Cole was indebted to anybody at the time he acquired title to the property, nor was there evidence that the corporation was insolvent at that time, or at any subsequent time.

The interveners apparently proceeded upon the theory that Mr. Cole, during his lifetime, considered the property as his own and dealt with it accordingly, and that aftеr his death, when it was discovered that he had signed indemnity agreements in the sum of $40,000 to protect the inter-veners in giving depository bonds, his heirs at law, who were the stockholders of the corporation, undertook “to get their fodder out of the rain” by setting up a parol trust, so as to wrench the title of the property out of Henderson Cole and put it in the corporation, where the interveners could not reach it. The jury could have inferred the facts to have been as the interveners contended, but it is apparent that in answering the first and second issues аs shown by the record that it did not follow or adopt the theory of the interveners.

The interveners further contend that, even if the title was originally vested in the plaintiff corporation, it abаndoned the title resulting ‍​​​‌‌​‌​‌​‌‌‌‌‌​‌​​‌​​‌‌‌​‌​​​‌‌‌​​‌​‌‌​‌‌‌​​​​​‍in revesting the same in Henderson Cole. This idea of abandonment is based upon (a) payment of rent to Cole during his lifetime for five *846 months preceding his death in 1922; (b) a certаin payment of $600.00 on the mortgage indebtedness of the property, which sum was apparently refunded to the plaintiff by Cole; (c) various checks for salary to Cole as an officer of the corporation; (d) various checks issued by the corporation and placed to the credit of Cole.

The pertinent decisions in this State are to the effect thаt an abandonment may be express or implied. Discussing the subject in Banks v. Banks, 77 N. C., 186, this Court said: “To constitute an abandonment or renunciation of claim there must be acts and conduct, positive, unequivocal, and inconsistent with their claim of title. Nor will mere lapse of time or other delay in asserting his claim unaccompanied by acts clearly inconsistent with his rights, amount to a waiver or abandonment.” See, also, Faw v. Whittington, 72 N. C., 321; Aiken v. Ins. Co., 173 N. C., 400, 92 S. E., 184; R. R. v. McGuire, 171 N. C., 277, 88 S. E., 337. The McGuire case, supra, states the principle as follows: “This brings us to consider the essential elements of an abandonment. It includes both the intention to abandon and the external act by which such intention is carried into effect. There must be a -concurrence of the intention with the actual relinquishment of the property. It is well settled that to constitute an abаndonment or renunciation of a claim to property there must be acts and conduct, positive, unequivocal, and inconsistent with the claim of title.”

Did the corporation intend tо abandon the title? Could more than one inference be drawn by reasonable minds from the various dealings between Cole ‍​​​‌‌​‌​‌​‌‌‌‌‌​‌​​‌​​‌‌‌​‌​​​‌‌‌​​‌​‌‌​‌‌‌​​​​​‍and the corporation? Upon these questions the evidеnce was conflicting. Therefore, abandonment became an issue of fact to be determined by a jury. Harper v. Battle, 180 N. C., 375, 104 S. E., 658. While no issue as to abandonment was submitted to the jury, nevertheless, it cannot be said that the various items of evidence established abandonment of title as a matter of law.

The third proposition of law invoking the principle of estoppel stands practically upon the same - footing as the contention with respect to abandonment. After the death of Mr. Cole a new system of bookkeeping was inaugurated by the plaintiff and a stаtement of the business dealings made, which did not include the land in controversy as an asset of the corporation, and which showed a balance due by the corporation to the estate of Cole in the sum of $1,004.14. There were also certain income tax reports submitted by the corporation, which tended to show that at one time the title to the propеrty was deemed and considered as a part of the estate of Henderson Cole and at another time the property of the corporation. In interpreting such evidenсe it must be borne in mind that the plaintiff corporation was under no obligation to the inter-veners, and that these book entries and income tax reports were made *847 after tbe death of Mr. Cole and after the interveners had assumed liability on the depository bonds hereinbefore mentioned. There was no issue of fraud or bad faith, and the ease was not tried upon suсh theory. Manifestly, the interveners were not misled nor induced to extend credit to Henderson Cole upon the strength and credibility of such entries and dealings. See Wells v. Crumpler, 182 N. C., 350, 109 S. E., 49, and Boddie v. Bond, 154 N. C., 359, 70 S. E., 824. The fourth, fifth, and sixth elements as thеrein classified are as follows:

(4) The party estopped “must intend or expect that his conduct or representations ‍​​​‌‌​‌​‌​‌‌‌‌‌​‌​​‌​​‌‌‌​‌​​​‌‌‌​​‌​‌‌​‌‌‌​​​​​‍will be acted on by the party asserting the estoppеl or by the public generally.”

(5) “The representations or conduct must have been relied and acted on by the party claiming the benefit of estoppel.”

(6) “The party claiming the benefit of estoppel must have so acted, because of such representations or conduct, that he would be prejudiced if the first party be permitted to deny the truth thereof.”

The jury, in answer to the third issue upon a correct charge, found that the plaintiff was not estopped as against the interveners. Obviously, a different situation would be presented if the controversy was between the plaintiff and the heirs at law of the estate of Henderson Cole.

There are one hundred and thirteen exceptions and a voluminous record, and it would be wholly impossible to undertake to discuss all of these exceptions. A careful and patient examination of the entire record leads the Court to the conclusion that the question has been fairly tried, according to correct principles of law, and the jury, in the face of sharp divergence and irreconcilability of evidence, adopted the theory and contentions of the plaintiff.

Affirmed.