Brice v. Moore, 7610SC206
| Decision Date | 04 August 1976 |
| Docket Number | No. 7610SC206,7610SC206 |
| Citation | 226 S.E.2d 882,30 N.C.App. 365 |
| Court | North Carolina Court of Appeals |
| Parties | Roberta Moore BRICE, Petitioner, v. Lindsey Adolph MOORE, Respondent. |
Gulley & Green by Jack P. Gulley, Raleigh, for respondent-appellant.
Brenton D. Adams, Raleigh, for petitioner-appellee.
In ruling on a motion for summary judgment the court must look at the record in the most favorable light to the party opposing the motion. Peterson v. Winn-Dixie, 14 N.C.App. 29, 187 S.E.2d 487 (1972). Respondent is the party opposing the motion here, and he contends in his first argument that summary judgment for petitioner was error because his assertion that he 'had no intention to make a gift to the wife' was sufficient to rebut the presumption that the transfer was a gift to the wife. We disagree.
Where a husband pays for land and has the deed made to himself and wife as tenants by the entirety, there is a presumption of an intent on the husband's part to make a gift to the wife of an interest in the property which continues when the tenancy by the entirety is later destroyed. Honeycutt v. Bank, 242 N.C. 734, 89 S.E.2d 598 (1955). To rebut the presumption of gift and establish a resulting trust the evidence must be clear, strong and convincing. Bowling v. Bowling, 252 N.C. 527, 114 S.E.2d 228 (1960); Honeycutt v. Bank, supra. The burden is upon the husband to bring forward facts overcoming the inference of an intent to give to his wife. Shue v. Shue, 241 N.C. 65, 84 S.E.2d 302 (1954); Bowling v. Bowling, supra. (See Bogert, Trusts and Trustees, Second Edition, § 459, Resulting Trust; examples of facts sufficient to rebut presumption of gift.)
Respondent's declaration by affidavit that he did not intend to make a gift to his wife was merely a reiteration of the same allegation contained in his answer. When the motion for summary judgment is supported, as required by Rule 56, the adverse party may not rest upon the mere allegations or denials of his pleadings, but he has to respond, by affidavits or as otherwise provided, by setting forth specific facts showing a genuine issue. Millsaps v. Contracting Co., 14 N.C.App. 321, 188 S.E.2d 663 (1972). Respondent did not set forth specific facts showing a genuine issue for trial by declaring what his intention was with respect to the property. Moreover, his declarations of intent after the controversy arose would not be admissible in evidence. See Smith v. Smith, 249 N.C. 669, 107 S.E.2d 530 (1959).
In his second argument respondent contends that the North Carolina law with respect to purchase-money resulting trusts is unconstitutional as applied to husbands and...
To continue reading
Request your trial
-
RED HILL HOSIERY MILL v. MagneTek, Inc.
...genuine issue(s) of material fact and a "genuine issue is one which can be maintained by substantial evidence"); Brice v. Moore, 30 N.C.App. 365, 367, 226 S.E.2d 882, 883 (1976) (evidence presented at summary judgment hearing must be viewed in the light most favorable to nonmovant); Comr. o......
-
Holcomb v. U.S. Fire Ins. Co., 8017SC878
...light most favorable to the party opposing the motion. Hinson v. Jefferson, 20 N.C.App. 204, 200 S.E.2d 812 (1973); Brice v. Moore, 30 N.C.App. 365, 226 S.E.2d 882 (1976). We must accept, therefore, as the trial court was required to do for purposes of this motion, plaintiffs' forecast of e......
-
Tarkington v. Tarkington, 7915SC618
...a gift to his wife of an entirety interest in the property. Honeycutt v. Bank, 242 N.C. 734, 89 S.E.2d 598 (1955); Brice v. Moore, 30 N.C.App. 365, 226 S.E.2d 882 (1976). A purchase money resulting trust is not presumed. This is consistent with the general rule on the creation of a purchase......
-
Dillingham v. Dillingham
...provide any of the consideration for the Marital Home, we find that a genuine issue exists as to this fact. See Brice v. Moore, 30 N.C.App. 365, 367, 226 S.E.2d 882, 883 (1976) (noting that, after the moving party has presented evidence showing no genuine issue of fact exists, the opposing ......