Gaylord v. Gaylord

• Decision Date: 10 March 1909
• Parties: GAYLORD et al. v. GAYLORD et ux.
• Court: North Carolina Supreme Court

63 S.E. 1028

150 N.C. 222

GAYLORD et al. v. GAYLORD et ux.

Supreme Court of North Carolina

March 10, 1909

Appeal from Superior Court, Beaufort County; Guion, Judge.

Action by Columbus Gaylord and others against Sam Gaylord and wife. From a judgment in favor of defendants, plaintiffs appeal. Reversed.

The doctrine of a trust resulting to a grantor when no consideration is paid never obtains when there was a contrary declaration made by a grantor at the time of the conveyance either oral or written.

Where a deed between relatives clearly indicates on its face that an absolute estate was intended to pass, either by the recital of a valuable consideration paid, or by an express covenant to warrant and defend the title, no trust will be implied or result in favor of the grantor, though no consideration was in fact paid.

The plaintiffs, devisees, children and heirs of Ebenezer Gaylord deceased, seek to recover possession of land which formerly belonged to their father, Ebenezer, from their uncle, Sam Gaylord, who is now in possession, claiming to own the land under an alleged deed to himself from his brother Ebenezer bearing date November 13, 1884. The evidence tended to show that some time in the year 1884, Ebenezer Gaylord, having some trouble with his first wife, Deborah, and his father-in-law, in order to place his property so that his wife could establish no claim upon it in case of litigation had a deed prepared, and made it over to his brother, with the understanding and agreement that Sam was to give the deed back to Ebenezer when the latter should call for it. No consideration was paid by Sam, the defendant, or any one for him, and, so far as appears, Ebenezer continued in control and possession of the property till his death in November, 1898; that Ebenezer afterwards married a second wife named Mary, and had by her a number of children, plaintiffs in the suit, and, while it is not so stated in the record, it was admitted on the argument that Sam had obtained the possession of the property after the death of his brother, on marrying Mary, his brother's widow. Speaking of the facts attending the transaction, Dr. Bullock, who seems to have prepared the deed, testified as follows: "Sam Gaylord asked me to come to my office; that Ebenezer wished to make him a deed, as he was in trouble, and for fear that his wife would get a part of his property in a suit she wanted to bring. I told him Ebenezer was doing a dangerous thing. The reason I said this was because it was a conditional deed. He said: 'I am making this deed over to my brother Sam to keep Deby, my wife, from getting hold of a portion of my property.' These were his very words; said he was willing to trust his brother to return the deed when it was all over. I then probated it. Sam promised to return it. After Ebenezer died, Sam came to me and told me Ebenezer had made him a deed, and asked me about registering it. I told him he had agreed to return it. I had nothing to do with it. The purpose of the deed was to cut his wife out of the land. No money was paid then, though it may have been paid before or after that." Columbus Gaylord testified as follows: "Ebenezer Gaylord was my father. He died in 1899. The other plaintiffs are my brothers and sisters, and children of his second marriage. They are minors. (Counsel reads description of land in deed, will, and complaint.) Witness says he knows it. It is all same land. My father's first wife was Deborah. His second wife, my mother, is named Mary. Defendant is in possession of this land. I heard a conversation between my father, the grantor in the deed, and the defendant, a year or two before he died, about the deed. Defendant told my father that the paper he held, he burned up." W. L. Judkins testified as follows: "I knew Ebenezer Gaylord and Sam Gaylord. Was present at the time he signed the deed to Sam Gaylord. Both witnesses to the deed are dead. The agreement between Ebenezer and Sam was that Sam was to hold the deed until Ebenezer had made some arrangements. Then Sam was to return the deed to his brother. Ebenezer was having some trouble with his wife. I don't know what, with her father, and about farming. I don't know what the trouble was. Afterwards they met in my presence, and Ebenezer approached him about the deed, and Sam told him he had made way with it; he did not have it. No money was paid. He made this deed to his brother, until he could arrange his troubles at that time. Seemed to be a deed to help him arrange things. No interest in suit. I never saw the deliverance of it. Wasn't there when he handed it to him. Trouble was over his wife and wife's father. She was talking about bringing a suit against him for her separate maintenance. He had some trouble about his farming up there, and seemed to want to leave this deed into the hands of his brother until he could settle these troubles. It was all the land he had that I knew of." R. W. Harris testified as follows: "I have heard a conversation between Ebenezer and Sam Gaylord, three years before Ebenezer died. Ebenezer asked him about the deed. Sam said he didn't have it, he had burned it. Ebenezer said: 'It's a damn lie. You got it to give my folks trouble about when I am dead.' I heard him talking about it before, and they all seemed to know that Sam had it. This time they had a quarrel about it." W. W. S. Waters, testified: "I heard Ebenezer say to Sam: 'I have given you that deed as a brother, and you as a brother ought to give it back as you promised.' Sam said: 'I have destroyed it.' Ebenezer said: 'You agreed to return it to me. I now want it back."' At the close of the testimony of plaintiffs, on motion of defendants, there was judgment as of nonsuit, and plaintiffs excepted and appealed.

Ward & Grimes and Bragaw & Harding, for appellants.

A. O. Gaylord and Small, MacLean & McMullan, for appellees.

HOKE J.

The alleged deed recites a valuable consideration paid by defendant Sam Gaylord, the grantee in the deed, contains a habendum "to have and to hold the said tracts of land, free and clear of all privileges and appurtenances thereunto belonging, to the said Sam M. Gaylord and his heirs in fee simple forever," and also the covenants "that the grantor is seized of the premises in fee simple and hath the right to convey the same, that they are free from all incumbrances, and that the grantor will warrant and defend the title to the same against the lawful claim of all persons," etc.; and the authorities are to the effect that in a deed of this character, giving on the face clear indication that an absolute estate was intended to pass, either by the recital of a valuable consideration paid, or by an express covenant to warrant and defend the title, no trust would be implied or result in favor of the grantor by reason of the circumstance that no consideration was in fact paid. Dickenson v. Dickenson, 6 N. C. 279; Squire v. Harder, 1 Paige (N. Y.) 494, 19 Am. Dec. 446; Hogan v. Jaques, 19 N. J. Eq. 123, 97 Am. Dec. 644; Lovett v. Taylor, 54 N. J. Eq. 311, 34 A. 896; Jackson v. Cleveland, 15 Mich. 94, 90 Am. Dec. 266. And while the opinion in Dickenson v. Dickenson, supra, has been so far modified in Barbee v. Barbee, 108 N.C. 581, 13 S.E. 215, as to permit proof that in fact no consideration was paid, or that the same was different from the recital, this modification was on a question not presented here, and in no way affects the principle that in a written deed, purporting to pass to the grantee an absolute title, the recital therein of a valuable consideration paid will prevent an implied or resulting trust in favor of the grantor arising from the lack of consideration. Thus Shepherd, J., for the court, delivering the opinion in Barbee v. Barbee, 108 N.C. 584, 13 S.E. 216, after saying that while the trend of our state decisions heretofore had favored the position that the recital in a deed of a valuable consideration paid should be held to be an estoppel for all purposes, yet "The overwhelming weight of American authority is in favor of treating the recital as only prima facie evidence of payment, as in the case of a receipt, the only effect of the consideration clause being to estop the grantor from alleging that the deed was executed without consideration in order to prevent a resulting trust." This doctrine of a trust or use resulting to a grantor when there was no consideration paid was a rule of the common law incident chiefly to conveyances of feoffment, and never obtained when there was a contrary declaration made by the grantor at the time of the conveyance, either oral or written, and in the rare instances, where the doctrine is applicable to written instruments, it is never allowed to prevail when there is a contrary intent clearly expressed in a written deed. Thus in Jackson v. Cleveland, supra, Campbell, J., said: "Accordingly, either the mention of a consideration, although nominal, or the declaration of uses, will prevent a resulting trust, and confirm the title in the feoffee. A court of chancery has never ventured against the expressed will of the donor, appearing on the face of the deed, to take the use from the donee and give it back to the donor. In other words, uses annexed to a perfect gift, however gratuitous, were enforced." And Walton, the chancellor, in Squires v. Harder, supra, said: "No resulting trust can be raised or effectuated to the express terms of a conveyance, and in favor of a grantor. In this case the complainants have given an absolute conveyance with warranty. They are therefore estopped from alleging that a part of the consideration was received in their own money."

Nor do we think it permissible upon the evidence that the plaintiffs should ingraft a parol trust, on a deed of the kind presented here, by...