Boone v. Lee

• Decision Date: 17 April 1918
• Docket Number: 392.
• Citation: 95 S.E. 659,175 N.C. 383
• Parties: BOONE v. LEE ET AL.
• Court: North Carolina Supreme Court

95 S.E. 659

175 N.C. 383

BOONE v. LEE ET AL.

No. 392.

Supreme Court of North Carolina

April 17, 1918

Appeal from Superior Court, Guilford County; Harding, Judge.

Action by P. V. Boone against James Lee and another. From a judgment for defendants, plaintiff appeals. New trial.

A trust agreement by which one holds land for others on the same terms and conditions as it was held by his grantor requires that he shall be paid the amount due his grantor.

The jury returned the following verdict:

(1) Did the plaintiff purchase land from A. J. Whittemore upon an agreement to hold same for the defendant upon the same terms and conditions as it was held by A. J. Whittemore? Answer: Yes.

(2) Has the defendant failed to comply with his contract with A. J. Whittemore, in that he failed to pay $5.00 per month on the purchase price as per the terms of said contract prior to the making of the deed from Whittemore to Boone? Answer: Yes.

(3) What amount, if any, did defendant pay to Whittemore on his contract to purchase the land in controversy? Answer $32.30.

(4) What amount, if any, did the plaintiff pay Whittemore for the land? Answer: $250.00.

And it being admitted that on the date of deed from Whittemore to plaintiff $267.70 was the balance due from defendants to Whittemore, with interest thereon from February 1 1915."

The court adjudged that upon payment by defendants to the plaintiff of the $250 due by the latter to Whittemore, with interest thereon from November 1, 1916, the plaintiff should convey the land in question to the defendants. Plaintiff excepted and appealed. The other exception is stated in the opinion.

Chas A. Hines and Thos. C. Hoyle, both of Greensboro, for appellant.

R. C Strudwick, of Greensboro, for appellees.

WALKER, J. (after stating the facts as above).

It appears in the case that the presiding judge charged the jury, upon the first issue as to the parol trust, that the burden of establishing the trust was on the defendants who had alleged its existence, but that it was only necessary that they should do so by the greater weight of the testimony. This was error, as the rule is, in such a case, that the jury must be satisfied of the trust by evidence clear, strong, and convincing. Lehew v. Hewett, 138 N.C. 6, 50 S.E. 459; Glenn v. Glenn, 169 N.C. 729, 86 S.E. 622. It is not like a case in which a party seeks to set aside a deed, or other instrument, for fraud or undue influence, where a preponderance of the evidence is sufficient to establish the fraud. The distinction is stated in Harding v. Long, 103 N.C. p. 1, 9 S.E. 445, 14 Am. St. Rep. 775, Ely v. Early, 94 N.C. p. 1, and more recently in Cedar Works v. Lumber Co., 168 N.C. 391, 84 S.E. 521, Lamm v. Lamm, 163 N.C. 71, 79 S.E. 290, Avery v. Stewart, 136 N.C. 426, 48 S.E. 775, 68 L. R. A. 776, Lamb v. Perry, 169 N.C. 436, 86 S.E. 179, Glenn v. Glenn, supra, Ray v. Patterson, 170 N.C. 226, 87 S.E. 212, Potato Co. v. Jeanette, 174 N.C. 236, 93 S.E. 795, and McLaurin v. Williams, 95 S.E. 559 (at this term). The case of Glenn v. Glenn, supra, is strikingly illustrative of the rule as applicable to the facts of our case. It was there said:

"Where a defendant holds under a deed formally conveying to him the legal title to real property, and a claimant is seeking to correct a mistake in the instrument or annex a condition to it or ingraft a trust upon it, he is required to make out his claim by clear, strong, and convincing proof ( Cedar Works v. Lumber Co., 168 N.C. p. 391 ; Ely v. Early, 94 N.C. p. 1), a position held to prevail in case of formal, written instruments, conveying personalty (White v. Carroll, 147 N.C. 334 ), and to written official certificates of officers given and made in the course of duty (Lumber Co. v. Leonard, 145 N.C. p. 339 ). And in further application of the principle it has been also held that, 'When the testimony is sufficient to carry the case to the jury, as on an ordinary issue, the judge can only lay this down as a proper rule to guide the jury in their deliberations, and it is for them to determine whether, in a given case, the testimony meets the requirements of this rule as to the degree of proof.' Gray v. Jenkins, 151 N.C. pp. 80, 82 , citing Cutherbertson v. Morgan, 149 N.C. p. 72 , and Lehew v. Hewett, 138 N.C. p. 6 . It is also fully recognized here that this rule as to the quantum of proof does not obtain in suits to set aside deeds or other written instruments conveying property for lack of mental capacity, or for fraud or undue influence, or because made with intent to defraud creditors, etc.; plaintiff, in such cases, being required to establish his allegations by the greater weight of the testimony. The distinction is very fully and satisfactorily discussed by Associate Justice Avery, in Harding v. Long, 103 N.C. p. 1 [9 S.E. 445, 14 Am. St. Rep. 775], a case that has been repeatedly cited in approval of the principle. Hodges v. Wilson, 165 N.C. pp. 323-333 ; Lamm v. Lamm, 163 N.C. p. 71 ; Culbreth v. Hall, 159 N.C. pp. 588-591 ; Odom v. Clark, 146 N.C. pp. 544-549 . From the facts in evidence as they now appear, the defendant has the legal title to the property in controversy, formally conveyed to him by written deed, pursuant to foreclosure sale, and the purpose of the action is to ingraft a trust upon this title in favor of plaintiffs, children and heirs at law of Mrs. Glenn, deceased. The case, in our opinion, comes under the principle sustained in Ely v. Early, supra,

...