Atkinson v. Atkinson
| Decision Date | 18 April 1945 |
| Docket Number | 233 |
| Citation | 33 S.E.2d 666,225 N.C. 120 |
| Parties | ATKINSON v. ATKINSON. |
| Court | North Carolina Supreme Court |
[Copyrighted Material Omitted]
Plaintiff brought this suit against the defendant to enforce an alleged trust growing out of the transactions hereinafter related, and to compel her to reconvey to him the lands described in the complaint, and to account for profits during their occupancy. He also demanded a return of the personalty described in the complaint, or an accounting for its value.
The defendant denied that there was ever any trust relationship existing between Wade H. Atkinson, or herself, and the plaintiff with respect to either the lands or the personalty subject of the controversy.
Upon the hearing the trial judge, considering the propiety of an accounting to depend upon the other issues in the case continued the prayer for an accounting and proceeded to trial upon the issues relating to the trust.
The facts in evidence are substantially as follows:
The plaintiff, Thomas H. Atkinson, and Dr. Wade H. Atkinson, husband of the defendant, were brothers. At the time of the transaction herein related, Thomas Atkinson was a resident of the State of Florida, and Dr. Wade Atkinson also resided outside the State. Thomas Atkinson owned a body of farm and timber land in Johnston County, North Carolina, which was the old Atkinson home place. The land was heavily mortgaged to the Atlantic Joint Stock Land Bank of Raleigh, North Carolina. Default having been made in payment of the instalments due on the land and of the taxes due thereon, the Bank had instituted proceedings to foreclose the mortgage.
Prior to his removal to Florida, the plaintiff had been engaged in the mercantile business in Selma, North Carolina, and had become financially embarrassed. Due to the failure of a business in Florida, and the fact that he had endorsed the notes of the concern heavily, there was imminent a judgment against him for about $50,000. His repeated efforts to refinance the loan with the Land Bank or to pay the instalments due ended in failure, and he was unable to redeem the land. He had offered the land to his creditors for application on his debts, but in view of the encumbrance, they declined the offer. Plaintiff estimated the property to be worth $40,000.
Outside the mortgaged property, he had some other lands adjoining those under the lien, which were also a part of the 'home place.'
Under these circumstances, Wade H. Atkinson made a written proposal to the plaintiff, as follows:
'June 12 -- '32
'Dear Tom:
'While in N. C. I learned of the mortgage closing on the old place. Judge Aycock said they would have trouble in serving papers on you & Mattie unless you accepted service etc. and also talked of the final procedure on your personal effects. Also had a talk with Barden about the plantation & the stock etc. He shows activity & thrift along hay, grass and clover, stock too.
'You know my earning capacity is knocked into a cocked hat, and that Wade took a crack at it, and that I must go for another treatment in France. So under these adverse circumstances I have made an offer to take up the mortgage, or have it assigned over. If they accept, I have to borrow. Under these circumstances the old place would be worthless to me without the stock, feed & implements. If they foreclose the procedure will be attaching everything you own etc. and at the present prices the receiver or what not will take it all.
'So under the conditions, I am offering to have you & Mattie to make sale to me of all the personal belongings of feed, stock, implements, etc., provided I can secure the mortgage, also the land not included in the mortgage. For this you shall have 1/2 the net proceeds of the farm, mill, etc., each year. If the lumber can be sold you can come supt. sell, etc., having 1/2 the profits. You shall have a welcome & free use of the place as a pleasure resort for yourself & family as long as it is in my possession. Further you may purchase the entire place mill & all any time you can & wish with a reasonable profit.
'I feel that I am undertaking a big thing at my expectancy, for I have to go so slow & be so careful with my health, that it is not promising much real pleasure for me. I therefore must be as business as possible for Mary's sake.
'About the Little River Milling Co. I do not know that I would prefer it in a company or not. Would like to have you tell me about it. How much stock & who holds it? I think it best to have things in one's own name, however would like your version of it.
'I hated to see your store closed & things looking so depleted around Selma. Saw Earp only for a few minutes & talked but little to him. I heard May say, or some one told us his daughter had bought a farm somewhere near, and that he was working on it, fixing up etc. He has been selling fertilizer for someone. Saw Avery only a few minutes. He wanted to talk about the insurance due on the houses on the old place. I think he said there was none on the mill.
'Drop me a letter & tell me what you & Mattie think about this proposal.
The proposal was accepted, and Thomas H. Atkinson and his wife conveyed the property, including that under mortgage and the other land referred to as unencumbered, together with the personalty described in the offer, in pursuance of the agreement. The deed made to Wade H. Atkinson and Mary C. Atkinson, his wife, and the present defendant, conveyed an estate by the entirety, and the personalty was conveyed to Wade H. Atkinson by bill of sale. The bill of sale and the deed are both dated July 1, 1932, but there is evidence that they were executed July 20, 1932.
Dr. Atkinson procured an assignment of the mortgage to himself and wife July 14, 1932. In this transaction he paid upon the mortgage liability $11,601.61, accumulated taxes of $1,286.99, with interest, which, under the Land Bank mortgage, had become a part of the principal debt, later satisfying other taxes, making the total taxes paid approximately $2,500. The mortgage was not canceled of record.
Following this transaction, Dr. Atkinson went into possession of the property and spent substantial sums in improving it, including some $6,000 in repairing and reconditioning the mill. He also paid to the plaintiff, in various checks, the sum of $8,377.58, representing one-half the gross receipts of timber cut upon the place.
Wade H. Atkinson died November 14, 1942, and title to the lands in controversy was thereby vested in his wife, the present defendant, by survivorship.
The plaintiff testified that prior to bringing the suit he had demanded of the defendant that she reconvey the property to him, and account to him for the profits.
At the conclusion of the plaintiff's evidence, the defendant demurred and made a motion for judgment as of nonsuit, which was allowed. The plaintiff appealed.
Smith, Leach & Anderson, of Raleigh, and Abell, Shephard & Wood, of Smithfield, for plaintiff-appellant.
Albert M. Noble and W. H. Lyon, both of Smithfield, and J. C. B. Ehringhaus, of Raleigh, for defendant-appellee.
This appeal, as argued, poses the single question whether there was error in taking the case from the jury and entering judgment as of nonsuit on defendant's demurrer to the evidence. G.S. s 1-183.
There are, it seems to us, certain inconsistencies in the theories of recovery presented, to which attention will be called in due course. But since plaintiff was entitled to go to the jury upon any cause of action sufficiently stated in the complaint and supported by evidence, we have examined the record in that light.
The exchanges between the parties covering the subject in controversy are in writing, and manifest no ambiguity which would require resort to extrinsic evidence, or the consideration of disputed fact. Their construction is, therefore, for the court. Drake v. Asheville, 194 N.C. 6, 138 S.E. 343.
By way of elimination, we observe that while the appellant laid the basis for such a claim in his complaint, he does not now contend that the written offer of Dr. Wade H. Atkinson, its acceptance, and the transfer of land and personalty made in pursuance thereof, as appearing in the evidence, constitute an express trust, or give rise to a resulting trust, as such trust is understood in this jurisdiction. In fact, there are provisions in the proposal and expressions in the deed which negative that theory. The appellant does contend that Dr. Atkinson and the defendant acquired title to the property in dispute, and that the defendant now retains it, under circumstances that should constrain the court to declare the defendant trustee of a constructive the defendant trustee of a trust for his benefit, arising exmaleficio. Such a trust is a remedial device, not referred to the intent of the parties, but imposed upon the wrongdoer in invitum, often contrary to the intent, to prevent the consummation of the fraud or unconscionable practice. Pomeroy, Equity Jurisprudence, 5th Ed., 1044; Lefkowitz v. Silver, 182 N.C. 339, 109 S.E. 56, 23 A.L.R.1491. It is contended that since title to the property was conveyed to the wife by the entirety, she was a party or privy to the wrongful acquisition of the property by her husband, or at least took an interest in the land in dispute without consideration, and with notice of plaintiff's equity--an interest which later ripened into the sole title by virtue of her survivorship; and that she will be unjustly enriched if she is not compelled to make restitution with respect to the property thus acquired and held.
While the theory of recovery is definitely based on fraud, actual or constructive, fraud, in terms, is not alleged in the...
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