Wachovia Bank &. Trust Co v. Black

• Decision Date: 22 January 1930
• Docket Number: (No. 596.)
• Citation: 151 S.E. 269
• Court: North Carolina Supreme Court
• Parties: WACHOVIA BANK &. TRUST CO. v. BLACK.

151 S.E. 269

(198 N.C. 219)

WACHOVIA BANK &. TRUST CO.

v.BLACK.

(No. 596.)

Supreme Court of North Carolina.

Jan. 22, 1930.

Appeal from Superior Court, Buncombe County; Schenck, Judge.

Controversy without action upon an agreed statement of facts between the Wachovia Bank & Trust Company, executor and trustee under the will of W. L. Black, deceased, and Agnes Mae Black, widow of W. L. Black. From the judgment, both parties appeal. Affirmed.

Appeal by plaintiff and defendant from a judgment of Schenck, J., rendered at June Term, 1929, of Buncombe, upon an agreed statement of facts submitted as a controversy without action under C. S. § 626. Affirmed.

Bourne, Parker & Jones, of Asheville, for plaintiff.

Fortune & Fortune, of Asheville, for defendant.

ADAMS, J. W. L. Black and Agnes Mae Black were husband and wife. The husband bought some land and had it conveyed to his wife and himself. Thereupon they executed a deed of trust on real property securing three notes given by them for the purchase price. W. L. Black paid the first two notes, but died leaving the third unpaid. This note was given to Fairy Owens and husband for $3,000, was dated December 22, 1925, was payable three years after date, was under seal, and was in the usual form. It contained the recital, "For value received we promise to pay, " etc.

W. L. Black made a will appointing the plaintiff his executor and trustee, and his widow dissented; but the dissent, it will be seen, is not decisive of the controversy or even material to its determination.

After the plaintiff qualified as executor, a question arose as to liability of the parties to the payees of the note. The plaintiff contended that Black and his wife took an estate by the entirety, and that upon the husband's death the wife, as survivor, became the sole owner of the land and is solely liable on the note; or, if not solely liable, that she is liable to the extent of one-half the amount due. The defendant contended that she is not liable at all, but if liable, in no event for more than one-half the note.

Upon an agreed statement of facts the controversy was submitted to the superior court of Buncombe county, and Judge Schenck adjudged that W. L. Black and his wife by the execution of the note became jointly andseverally liable, and that as between the parties the plaintiff is liable to the payment of one-half the note, with interest, and that the defendant is liable to the payment of one-half, with interest. Both parties excepted to the judgment and appealed.

This is an adjudication of the liability of the members of the note as between themselves, not an adjudication of their liability to the payees. In attacking the judgment the plaintiff suggests that Mrs. Black acquired title to the land (and, indeed, to two other lots which were purchased in like manner and paid for by the husband) as the trustee of a resulting trust. But this position is not defensible. If a husband purchase land with his wife's money and take title in his own name, he will usually be declared the trustee of a resulting trust, enforceable by the wife; but if he purchase...