Cade v. Davis
| Decision Date | 02 May 1887 |
| Citation | 2 S.E. 225,96 N.C. 139 |
| Parties | CADE v. DAVIS, Ex'r. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Cumberland county.
A married woman consented to the transfer of an estate descended to her from her father, under a parol agreement or understanding, on the part of her husband, that the proceeds of said transfer would be secured to her. The husband died without so doing, but had discharged certain indebtedness against the estate which was the source of the fund, and which was claimed as an offset to the wife's demand. Held, that the estate of the husband was chargeable with the value of the estate received, less expenditures made.
N. W Ray and T. H. Sutton, for plaintiff.
W. A Guthrie, for defendant.
William Cade, the defendant's testator, in 1862, intermarried with the plaintiff at the residence of her father, J. C Cunningham, in South Carolina, and she returned with him to his home in Cumberland, in this state, where they remained until soon after the army under Gen. Sherman ravished that section, when they removed to and occupied the house and farm of said Cunningham under a contract of renting by him to her husband. Cunningham died in June, 1868, shortly after which the testator and his wife came back to their home in Cumberland. While living in this state, a considerable sum of the personal estate, which the jury find to be $785, and to have been received some time in 1868, came into the testator's hands, besides which were paid him on November 29, 1879, $2,900 by one J. C. Cottingham for a tract of land lying in South Carolina, and which descended to the plaintiff, and were by her husband and herself sold and conveyed to him. The complaint alleges that this fund was received by the testator, and the jury so find, under a parol agreement or understanding that he would secure the money so received to her. No part of this money has been paid or secured to the plaintiff, and as much as was needed was applied to the satisfaction of a mortgage on the testator's land in Cumberland on a debt of which the principal money was $2,300 due to J. D. Williams. The answer besides controverting the essential allegations made by the plaintiff, and upon which her equity to a provision out of the testator's estate, adequate to her full reimbursement, depends, as an offset to the demand alleges that he paid a large amount of liabilities of the deceased to creditors, and for repairs and taxes, as well as charges, which properly fall on the plaintiff's separate estate if such she has. The jury find, upon an issue, that the deceased paid out $1,750 of his own money in relief and exoneration of the plaintiff's estate. These are the results developed at the trial, and determined by the verdict. We now propose to enter upon an examination of the exceptions taken during the progress of the trial before the jury.
1. The defendant objected to the admission of any evidence not in writing, and bearing the signature of the testator or of his agent, to prove the alleged contract. The objection was overruled, and the testimony heard, and exception to the ruling entered. While trusts, unless annexed as incident to a conveyance of the legal estate, cannot be raised by parol, even when founded on a valuable consideration, they may be attached by a contemporary agreement to such transferred estate, and will be enforced. If the agreement had been that the fund should be invested in the purchase of other land in place of that surrendered by the plaintiff, on such condition, a specific performance would not be enforced; because, being to secure an interest in land and unwritten, it would come under the operation of the statute of frauds. It was so expressly held in Smith v. Smith, Win. Eq. 30, and relief was given by declaring the wife to be entitled to the proceeds of sale of her land sold in consequence of the contract, out of his estate, and perhaps to hold the land purchased with the money as security to her, had this been found necessary. To refuse all redress would have been to enable the husband thus to acquire the property of his wife, and then repudiate the contract by which alone it was obtained, and practice a successful fraud upon her. As in other cases of a parol contract for the sale of land upon which money has been paid in the expectation of securing title, if the vendor repudiate the obligation because the contract is not in writing, he is required to return the money, for he will not be allowed to retain both. So must the husband, thus obtaining the property of his wife under a contract recognized in equity, execute his agreement, or restore what he has obtained under it.
In Dula v. Young, 70 N.C. 450, a case which seems to have been relied on to sustain the ruling, but is not similar in all respects, the husband and wife entered into an agreement by which her land was to be sold, and the proceeds of sale used in the purchase of a specific tract known as the "Elk Farm." Her land was conveyed and the farm bought, but title thereto taken by the husband in his own name. Both died having children, their common heirs, to whom the legal estate of the father and the equitable estate of the mother descended, thus merging in one. The court decided that what the husband ought to have done had been accomplished by operation of law, and the heirs had acquired an absolute estate, not liable for the debt of their father, and no order for specific performance was necessary or asked.
In the present case there was no undertaking to do what would have been required to be put in writing, but in general terms to secure the fund and repay it,-- a very vague averment, it must be admitted; and to enable his estate to receive this accession from hers, and then escape the conditions of the acquisition, would amount to a fraud, whether so intended or not, which a court of equity will not tolerate, and against which it will give redress. This exception, lying at the root of the case, must therefore be overruled.
2. The defendant objected to so much of the testimony of J. C Cottingham, contained in his deposition, as relates to his purchase of the plaintiff's land, and to whom he made payment, upon several grounds: (1) For that the transaction is contained in a deed of which itself is the best evidence; (2) for that in proving payment he was testifying to a transaction with a deceased person; and (3) because it was an attempt to prove title by parol. None of these grounds of objection are tenable. First. The answer admits the conveyance of the land (lying in South Carolina) to the witness, and the production of the deed was unnecessary. The testimony is essentially of the circumstances attending the transaction that are not in the deed, and the deed is referred to only collaterally. Carrington v. Allen, 87 N.C. 354, and cases cited. Second. The statement that the witness, on examining the records, found that the land had been devised by her father to the plaintiff, was but to satisfy his own mind as to the title. There seems to have been no controversy upon this point, and it was a collateral inquiry. Third. The fact of payment to a deceased person for land bought of him does not render the testimony incompetent, under the interdict of the Code, § 590. The...
To continue reading
Request your trial