Deans v. Deans, 161

• Decision Date: 03 November 1954
• Docket Number: No. 161,161
• Citation: 241 N.C. 1,84 S.E.2d 321
• Parties: Bessle DEANS v. Penrose DEANS.
• Court: North Carolina Supreme Court

Page 321

84 S.E.2d 321

241 N.C. 1

Bessle DEANS v. Penrose DEANS.

No. 161

Supreme Court of North Carolina.

Nov. 3, 1954

Jones, Jones & Jones, Ahoskie, and John R. Jenkins, Jr., Aulander, for defendant-appellant.

V. D. Strickland, Rich Square, Gay & Midyette, Jackson, for plaintiff-appellee.

HIGGINS, Justice.

The complaint in this case is a jumble containing some parts of different causes of action. It is drawn without regard to the requirement that each cause of action should be separately stated. First, it is alleged that the plaintiff and defendant bought a vacant lot under an agreement that title should be taken in the names of both as joint and equal owners. Second, that under the belief she shared in the title, she contributed money and labor to the erection of a building on the lot under such circumstances as would amount to a trust for her benefit. Third, that the defendant maliciously turned her out of doors, drove her from her home, and failed to support her. In her prayer for relief, she asked the court to declare that she is entitled to a one-half interest in the land and that the title be declared held in trust for her benefit; that the court appoint a commissioner to sell the lands for division, and in the alternative, if the court should hold she is not entitled to one-half interest, that she recover $3,000 because of the defendant's failure to support her.

Upon failure of the defendant to file an answer, the clerk attempted to give the plaintiff the relief demanded in her complaint by decreeing 'The plaintiff be and she is hereby vested with a title to a one-half ( 1/2) interest in and to that certain lot or parcel of land and residence situate thereon that was purchased from J. M. Tayloe and wife, Mary O. Tayloe, by deed dated April 6, 1945, and recorded in Book 317, page 259, Northampton County Register of Deeds office.' This description, it may be noted, does not appear in the complaint.

The complaint alleges the plaintiff and defendant purchased a vacant lot for $405 'and it was agreed and understood at the time said purchase was made that the deed for said lot of land would be made to plaintiff and defendant jointly and that the plaintiff would have a one-half interest in said property.' In a later paragraph it is alleged that unknown to her 'title was vested in the defendant individually.'

Liberally construed, the allegations would give rise to an express trust, that is, a trust arising on the contract to have the title conveyed to both. The plaintiff's remedy on repudiation or refusal to comply would be for breach of contract, and the equitable jurisdiction of the court could be invoked to declare the defendant held title to one-half the property for the benefit of the plaintiff.

In a later paragraph the complaint alleges the plaintiff 'thinking at all times that she had and would always have a one-half interest in said property' contributed money and labor to the erection of a six-room dwelling thereon. She alleges her contribution would give rise to a resulting trust in her favor. A trust of this character arises 'when a person becomes invested with a title to real property under circumstances which in equity obligate him to hold the title and to exercise his ownership for the benefit of another. Under such circumstances equity creates a trust in favor of such other person commensurate with his interest in the subject matter. A trust of this sort does not arise from or depend on any agreement between the parties. It results from the fact that one man's money has been invested in land and the conveyance taken in the name of another. It is a mere creature of equity.' Teachey v. Gurley, 214 N.C. 288, 199 S.E. 83, 86.

The plaintiff's interest would be limited in proportion to her contribution to the whole purchase price. But nowhere does she allege the amount or value of her contribution. On failure to establish either an express or a resulting trust, she may be able to allege and prove sufficient facts to permit a recovery for improvements put upon the land under the mistaken belief she shared in the title.

What has been said thus far relates to the failure of the complaint adequately to state causes of action. Certainly not less serious is its failure properly to define the subject-matter of the action with sufficient certainty to give the court jurisdiction. In order for the Superior Court of Northampton County to have jurisdiction, the complaint must allege the land, or at least some part thereof, is located in Northampton County. The description is contained in paragraph 3: 'A vacant lot or parcel of land bought from J. M. Tayloe for $405.' And in paragraph 4 it is alleged: 'After the purchase of said lot of land in 1945 the plaintiff and defendant built a six-room residence on said land.' Nothing else in the complaint adds to the description. Where is the lot? Is is in Northampton, Edgecombe, Cherokee, or Currituck? Is it in North Carolina or Virginia? True, there is a more definite description in the judgment by default signed by the clerk, but this judgment is no part of the complaint and cannot supply the defects of the complaint. Where or how the clerk came by the description does not appear. It did not come from the complaint. The clerk of the Superior Court of Johnston County had no authority to allot dower in lands located in Wilson County. Hence, the proceeding was void ab initio. High v. Pearce, 220 N.C. 266, 17 S.E.2d 108.

Another hurdle is the sufficiency of the description. The description must identify the land, or it must refer to something that will identify it with certainty. Otherwise the description is void for uncertainty. Speaking to the question of the sufficiency of description in the case of Johnston County v. Stewart, 217 N.C. 334, 7 S.E.2d 708, 709, this Court said: 'When the appellants were brought into the case by the service of summons, it was their first opportunity to be heard, and they had a right to set up any defense of which they were advised in the original proceeding. This they have done by demurring to the complaint on the ground that the description of the property therein contained was too vague and indefinite to constitute the basis for a valid judgment. The only description of the property in the complaint is that 'there was listed in the name of Mrs. D. J. Stewart the following described land: '4 lots lying and being in Banner Township, Johnston County.'' It is apparent that the description is neither sufficient in itself, nor capable of being reduced to a certainty by a recurrence to something extrinsic to which it refers. Harris v. Woodard, 130 N.C. 580, 41 S.E. 790; Rexford v. Phillips, 159 N.C. 213, 74 S. E. 337; Speed v. Perry, 167 N.C. 122, 83 S.E. 176; Higdon v. Howell, 167 N.C. 455, 83 S.E. 807; Bissette v. Strickland, 191 N.C. 260, 131 S.E. 655; Bryson v. McCoy, 194 N.C. 91, 138 S.E. 420; Katz v. Daughtrey, 198 N.C. 393, 151 S.E. 879; North Carolina Self Help Corp. v. Brinkley, 215 N.C. 615, 2 S.E.2d 889'.

In the case of Bissette v. Strickland, 191 N.C. 260, 131 S.E. 655, the description in question was: "A certain piece or tract of land lying and being in Nash county, state aforesaid, in Bailey township, and described and defined as follows: All of our lifetime interest in twenty acres of land, more or less, and being a part of the Mary A. J. Bissette estate, and joining the lands of F. R. Perry, John H. Griffin and others.' ' F. R. Perry, one of the adjoining landowners, gave parol testimony to aid the description as follows: 'that he also knew the particular piece of land containing twenty acres, more or less, described in the mortgage; that it joined his land and also joined the John H. Griffin land, and that E. J. Bissette, the grantor in said mortgage, lived on this particular piece of land for several years, and that so far as he knew, E. J. Bissette never owned any other land in the county.' Another adjoining landowner testified that he knew the land described, 'that he knew of no other piece of land containing 20 acres, more or less, which joined the land of Kinchen Lyles on the east, Martha Bissette on the west, F. R. Perry on the north,...