Crawford v. Crawford

• Decision Date: 04 January 1939
• Docket Number: 683.
• Citation: 200 S.E. 421,214 N.C. 614
• Parties: CRAWFORD v. CRAWFORD.
• Court: North Carolina Supreme Court

200 S.E. 421

214 N.C. 614

CRAWFORD v. CRAWFORD.

No. 683.

Supreme Court of North Carolina

January 4, 1939

Appeal from Superior Court, Robeson County; N. A. Sinclair, Judge.

Civil action by W. J. Crawford against J. C. Crawford to engraft a parol trust upon a deed absolute on its face. From an adverse judgment, defendant appeals.

Reversed.

In action to engraft parol trust on deed absolute on its face evidence of prior partition proceedings introduced by defendant was proper to be considered on motion for judgment as of nonsuit.

Civil action to engraft a parol trust upon deed absolute upon its face.

The uncontroverted facts are these: Plaintiff and defendant brothers, are two of nine children of Mary E. Crawford and her husband, J. W. Crawford, both now deceased. Upon the death of Mary E. Crawford, intestate, in the year 1916 seized and possessed of two tracts of land in Robeson County one containing 180 acres and the other 48.4 acres, the title descended to her children subject to estate by courtesy of her husband, J. W. Crawford, all of whom survived her.

Prior to October, 1922, plaintiff became indebted to J. W. Crawford, who obtained a judgment against him in the sum of $500, as alleged by plaintiff, upon which execution was issued, and plaintiff's undivided interest in the 180 acres tract was sold, the defendant becoming the purchaser thereof for $500, and on November 6, 1922, Sheriff's deed therefor was executed and delivered to the defendant.

Following the death of J. W. Crawford, July 14, 1936, and pursuant to written agreement of the nine children, including plaintiff, dated October 30, 1936, to become parties to proceeding in Superior Court "for the purpose of dividing" said two tracts of land, and, under date November 12, 1936, an ex parte petition for partition verified by defendant, J. C. Crawford, was filed. The petition alleges "that petitioners are tenants in common and are in possession of" the said two tracts of land; that the interests of the petitioners in said land are as follows: "(a) J. C. Crawford owns a one-ninth undivided interest in the second tract containing 48.4 acres and a one-third undivided interest in the first tract containing 180 acres * * * (h) W. J. Crawford owns one-ninth undivided interest in the second tract containing 48.4 acres above described, but owns no interest in the first tract containing 180 acres, having conveyed his interest in said tract to J. C. Crawford * * *". By order dated November 16, 1936, commissioners were appointed "to divide the lands described in said petition into nine (9) shares and to allot to each of the petitioners his or her share in severalty" in accordance with the interests set out in the petition. The commissioners divided and allotted the lands as directed,- allotting to J. C. Crawford tract No. 3 containing 64.237 acres and to W. J. Crawford tract No. 6 containing 5.129 acres, being his interest in the 48.4 acres tract, report of which was filed February 13, 1937. No objection having been filed, the report was confirmed. The decree of confirmation, dated March 15, 1937, declares that it "shall be binding among and between the said petitioners, their heirs and assigns". The undisputed evidence shows that as soon as the land was divided plaintiff took possession of that portion allotted to him.

Plaintiff alleges and offered evidence tending to show that defendant purchased plaintiff's undivided interest in the 180 acres tract at said execution sale in 1922 under parol agreement to purchase, pay for, take title to and hold same for plaintiff and to reconvey same to plaintiff upon payment of the purchase price-and, that, though he has paid to Guy Crawford, a brother, at direction of defendant, all the principal and part of the interest, and stands ready, able and willing to pay such balance as may be justly due upon being informed by defendant the amount thereof, his demand for conveyance is refused by defendant.

Defendant denies the alleged agreement, denies that he authorized plaintiff to pay for him any amount to Guy Crawford, and offered evidence tending to support such denial.

Plaintiff further alleges: "That prior to the institution of this action, the heirs at law of the said Mary E. Crawford instituted a partition proceeding in the Superior Court of Robeson County, North Carolina, for the purpose of having the shares owned by each of the children of the said Mary E. Crawford, allotted to them, and in said partition proceeding the interest of the plaintiff, W. J. Crawford, in the lands above described, has been allotted to the defendant, John C. Crawford, and he is now holding the same as his property, which is a one-ninth interest in the whole tract of land above described. Reference to said partition proceeding and the allotment made by the commissioners is hereby referred to for a full and complete description of the interest of this plaintiff".

To this last allegation defendant merely avers that only such lands as belonged to him were allotted to him in said proceeding.

On the trial below motion of defendant for judgment as of nonsuit at the close of plaintiff's evidence was denied. Exception. Thereupon, in addition to oral testimony, defendant introduced the original record in the said partition proceeding. At the close of all the evidence defendant renewed his motion for judgment as of nonsuit, which was overruled. Exception.

The case was submitted upon this issue: "Does the defendant hold title to a one-ninth interest in the Crawford home place described in the complaint, in trust for the use and benefit of the plaintiff, as alleged?" to which the jury answered "Yes".

From adverse judgment defendant appeals to Supreme Court, and assigns error.

McLean & Stacy and Varser, McIntyre & Henry, all of Lumberton, for appellant.

W. E. Lynch, of Rowland, for appellee.

WINBORNE Justice.

The only question presented on this appeal: Is plaintiff estopped by the decree of the partition proceeding to claim interest in land in question under alleged parol agreement with defendant?

Appellant presents this question on exception to refusal of motions for judgment as of nonsuit, and on exceptive assignments to these portions of the charge of the Court: (1) "There has been offered in evidence a partition proceeding. I instruct you as a matter of law, that if you find as contended for by the plaintiff, that his brother...