Bowling v. Bowling, 467
| Decision Date | 18 May 1960 |
| Docket Number | No. 467,467 |
| Citation | 114 S.E.2d 228,252 N.C. 527 |
| Court | North Carolina Supreme Court |
| Parties | Bessie Wall BOWLING, Plaintiff, v. Joseph Wesley BOWLING, Defendant. |
William Joslin, Raleigh, for plaintiff.
Moore & Moore, Wilson, and Bailey & Dixon, Raleigh, for defendant.
We consider the causes of action in inverse order.
(1) The second cause of action--accounting for funds allegedly held by defendant in trust for plaintiff:
Defendant assigns as error the failure of the judge to submit an issue as to the true ownership of the farm which plaintiff alleges was owned by her and defendant, her husband, as tenants by the entirety. Defendant now contends that plaintiff owned no interest in the farm, that it was purchased from defendant's uncle and paid for by income and rents from the land.
It is alleged in the complaint and admitted in the answer "that the title to said property (farm) was taken in the name of Joseph Wesley Bowling and wife, Bessie Wall Bowling, as evidenced by deed recorded * * *." There is no affirmative allegation of sole ownership by defendant in his answer. At the outset of the trial, plaintiff and defendant stipulated: "C.N. Lawrence and wife, Mary B. Lawrence, executed a deed for a 99.7 acre farm to Joseph Wesley Bowling and wife, Bessie Wall Bowling; * * * and that the purchase price of said farm was $15,000.00" and "that Joseph Wesley Bowling and wife, Bessie Wall Bowling, executed a purchase money deed of trust * * * to J. Russell Nipper, Trustee for C.N. Lawrence and wife, Mary B. Lawrence, for the sum of $15,000.00 payable at the rate of $1,000.00 per year, with interest," and "that Joseph Wesley Bowling and wife, Bessie Wall Bowling, executed a deed for said 99.7 acre farm to C.M. McDaniel and wife, Thelma M. McDaniel * * * and * * that the sales price of said 99.7 acre farm was $8,000.00."
In apt time defendant tendered issues. He did not tender an issue relating to the ownership of the farm. It is clear that the contention made here was not asserted by defendant below, and the case was tried upon the theory that defendant conceded that he and his wife had owned the farm as tenants by the entirety. Upon the record it is our opinion that the judge was correct in proceeding on this theory. An appeal will be considered here on the theory adopted by the court and parties below. Waddell v. Carson, 245 N.C. 669, 673, 97 S.E.2d 222.
"A deed to husband and wife, nothing else appearing, vests the title in them as tenants by entirety." Edwards v. Batts, 245 N.C. 693, 696, 97 S.E.2d 101, 104; Byrd v. Patterson, 229 N.C. 156, 48 S.E.2d 45. There is no pleading or evidence to the effect that plaintiff's name was inserted in the deed, in the instant case, through fraud or mistake or that, at the time or prior to the execution and delivery of the deed, plaintiff agreed to hold the land in trust for defendant. There is nothing in this record which takes the transaction out of the well-settled doctrine of the common law that when land is conveyed to husband and wife jointly they take by the entirety. Morton v. Blades Lumber Co., 154 N.C. 278, 70 S.E. 467. Where a husband purchases realty and causes the conveyance to be made to him and his wife, the law presumes a gift to the wife and no resulting trust arises; and to rebut the presumption of a gift and establish a resulting trust the evidence must be clear, strong and convincing. Honeycutt v. Citizens National Bank, 242 N.C. 734, 741, 89 S.E.2d 598.
It is true that the trial judge has the duty to submit to the jury all material issues arising upon the pleadings. G.S. § 1-200; Griffin v. United Services Life Insurance Co., 225 N.C. 684, 686, 36 S.E.2d 225. But the issue here contended for does not arise either upon the pleadings or the evidence.
Defendant also assigns as error the ruling of the court below that a trust arises by operation of law in favor of the wife when property owned by the entirety is sold and the wife permits the husband to use the entire net proceeds for his own purposes.
We find no error in the court's ruling. When land held as a tenancy by the entirety is sold, the proceeds derived from the sale are personalty and belong to the husband and wife as tenants in common, but they have the right to dispose of the proceeds by contract inter se if they so desire. Wilson v. Ervin, 227 N.C. 396, 399, 42 S.E.2d 468. The personal property of a feme covert, to which she may become in any manner entitled, shall be and remain the sole and separate estate and property of such female. Constitution of North Carolina, Article X, section 6. G.S. § 52-1. In Etheredge v. Cochran, 196 N.C. 681, 146 S.E. 711, 712, a wife received checks from her parents as a personal gift to her, she endorsed and delivered them to her husband and he used the proceeds to purchase property for himself. The Court declared: See Bullman v. Edney, 232 N.C. 465, 61 S.E.2d 338.
The fact that a beneficiary of a trust acquiesces in the investment of the trust fund does not support the inference or conclusion that she is estopped to assert her rights under the rule of trust pursuit. Edgecombe Bank & Trust Co. v. Barrett, 238 N.C. 579, 588, 78 S.E.2d 730.
The answer in the case sub judice does not allege that there was any contract or agreement with respect to the disposition of the proceeds from the sale of the farm. The evidence relating to the sale and disposition of the proceeds is substantially as follows: (Plaintiff's version.) The net proceeds of the sale was approximately $6,000.00. Two checks were given in payment, payable to plaintiff and defendant. Plaintiff endorsed both and defendant deposited the money in a bank account so that they could open a dance studio in Wilson. They discussed selling the farm and plaintiff agreed so that she and her husband could open the dance studio. Defendant never asked her to make a gift of the money to him or any part of it. Pl...
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