Foy v. Foy
| Decision Date | 31 January 1801 |
| Citation | 3 N.C. 131 |
| Court | North Carolina Supreme Court |
| Parties | FOY v. FOY. |
a creation of a trust or a declaration of one may be proved in this State by parol evidence, the statute of frauds not being in force here.
The bill states that Thomas, a brother of both the parties, purchased in conjunction with the defendant, a tract of land, and paid half the purchase money: That title for the whole was made to the defendant, who promised to convey to Thomas—and that afterwards Thomas died. The answer denied these allegations. The proofs supported the bill, but evidence was given on the side of the defendant, that Thomas, before his death, said, if he (Thomas) should die without a child, that he did not intend the defendant should be called on for an execution of his promise; and when his will was written, he assigned as a reason for giving more slaves to the complainant than he did to defendant, to be, because defendant had the half of the lands purchased by his money, which made his share equal.
will still leave the trust estate where it was; and then at the time of his death, it passed as to one half by his will to the complainant. There is great reason why the rules of law should be applied to such estates: they are generally created for helpless and weak persons, and children not having prudence and strength of mind enough to take care of themselves, or for married women; such persons in short, from whom parol declarations can be most easily drawn, and who leastweigh their expressions. If a deed be not requisite, how liable are all such estates to be defeated? By false testimony or the unweariness of those for whose benefits such estates are most commonly provided.
Taylor, Judge. There can be no doubt as to the justice of this case: It is evident Thomas intended his half of the laud to remain with the defendant; but if there be any such rule as is contended for by the complainant's counsel, it must be followed. I will take time to consider. And finally he decided that the parol evidence was sufficient. He said the statute of frauds in England enacts that no creation of trust or declaration of one shall be proved by parol evidence: whence it was to be inferred that before that act, such parol declaration was valid, and our law is the same as in England before that statute.
NOTE.—See Gay v. Hunt, 6 N. C., 141; Henderson v Hoke, 21 N. C., 119.
Cited. Ferguson v. Haas, 64 N. C., 772; Pittman v. Pittman, 107 N. C., 158; Gorre v. Alspaugh, 120 N....
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Herring v. Volume Merchandise, Inc., 308
...2, declares void parol assignments or surrenders of leases, but the English statue was not adopted by us as a part of our common law. Foy v. Foy, 3 N.C. 131. Our statute, G.S. § 22-2, adopted in 1819, declares void when not in writing all leases and contracts for leasing lands for a period ......