Dula v. Young

• Decision Date: 31 January 1874
• Court: North Carolina Supreme Court
• Parties: SARAH H. DULA and another v. ZEPHANIAH YOUNG and C. W. CLARK, Adm'rs., ,

70 N.C. 450

SARAH H. DULA and another

v.ZEPHANIAH YOUNG and C. W. CLARK, Adm'rs., ,

Supreme Court of North Carolina.

January Term, 1874.

It is prejudicial to the rights of the plaintiffs, for the presiding Judge on the trial below, to charge the jury that “the plaintiffs are not entitled to recover in any event, and if the issues were found in their favor, he would set aside the verdict,” and afterwards to submit the issues to be passed upon by the jury to “say how the matter was.”

Where there was an agreement between a husband and wife that if the wife would join him in a conveyance of a certain tract of land descended to the wife from her father, she should have another tract in lieu of the one so conveyed: Held, that when the husband received the money for the land conveyed as before set out, he held it upon trust for his wife, and that his estate became responsible therefor.

Held further, that the heirs at law of the wife are entitled to the land agreed to be substituted for that of the wife, free from the incumbrance of the husband's debts.

( Smith v. Smith, Winst. Eq. 30, cited and distinguished from this.)

CIVIL ACTION, to recover a tract of land, tried at the Fall Term, 1873, of WILKES Superior Court, before his Honor, Judge Mitchell and a jury.

The plaintiffs, children and heirs at-law of John Witherspoon, the intestate of the defendant, Clark, and his wife Elizabeth, allege that in 1842, their ancestor John was seized, in right of his wife, of a tract of land, known as the “Calloway tract,” which he sold, and in order to obtain the consent of his wife to the sale, agreed, if she would sign the deed conveying the Calloway tract, that he would purchase for her the Elk farm tract, which should be substituted for the other, which had descended to her from her father. John Witherspoon took the deed in his own name, not mentioning or in any manner attending to the agreement with his wife, which was not reduced to writing. Upon his death, his administrator, the defendant Clarke, sold the Elk Farm tract, with his other real estate, to pay debts, and Young, the other defendant in this action, became the purchaser. The plaintiffs demand that this agreement between their father and mother should be set up, and that the Elk Farm tract should be declared to be their property, as heirs of their mother, and not subject to the payment of their father's debts.

The defendants deny the material allegations of the plaintiffs' complaint, and rely upon the Statute of Frauds to prevent their recovery.

On the trial the following issues were submitted to the jury:

1. Did John Witherspoon enter into an agreement with his wife, Elizabeth, that if she would convey the Calloway tract of land, and join him in a deed therefor to Prudence Calloway, the heir-at law of William Howard, that she should have the Elk Farm tract, (the same sought to be recovered in this action,) as a substitute and in lieu thereof, as her own land?

2. If such agreement was made, was there any note or memorandum in writing of the same signed by the party to be charged therewith?

3. Was the consideration paid for the Calloway land to John Witherspoon, and used by him in the payment of the Elk Farm tract?

There was evidence tending to prove that the contract of the sale of the Calloway land by John Witherspoon and his purchase of tbe Elk Farm land was at the same time. The dates of the deeds were as follows: the deed of the Elk Farm land is dated in February, 1841; the deed given by himself and wife for the Calloway tract is dated in 1848, a suit concerning the latter pending between those dates.

It was conceded by plaintiffs that there was no evidence of any contract in writing, and the jury might find that issue for defendants.

After the evidence had been submitted and the argument closed, the Court informed the jury that the plaintiffs were not entitled to recover in any event; and if the issues were found for the plaintiffs, he would set aside the verdict. Afterwards his Honor said to the jury, that they could take the issues and pass upon them, and say how the matter was. Thereupon the jury returned a verdict finding the first issue in favor of the plaintiffs and the second and third in favor of the defendants.

The plaintiffs then asked for a new trial on the third issue, because the Court had...