Hendren v. Hendren

• Decision Date: 30 November 1910
• Parties: HENDREN v. HENDREN et al.
• Court: North Carolina Supreme Court

69 S.E. 506

153 N.C. 505

HENDREN v. HENDREN et al.

Supreme Court of North Carolina

November 30, 1910

Appeal from Superior Court, Wilkes County; Pell, Judge.

Action by Dora Hendren against Vance Hendren and others. Judgment for plaintiff, and certain defendants appeal. Reversed, for new trial.

To establish a trust in land, where the consideration was paid by another than the grantee, in contravention of a written deed, the evidence must be clear, strong, and convincing; but when the testimony is sufficient to carry the case to the jury, as on an ordinary issue, it is for them to determine whether the testimony meets the requirements of the rule as to the degree of proof.

Petition for dower, transferred to civil issue docket on answer filed by some of the heirs at law. The court charged the jury, in effect, that if the evidence was believed the plaintiff was entitled to dower, as claimed, in all the lands set forth and described in the petition. Verdict and judgment for plaintiff, and defendants, other than Lunday and Mattie May Hendren, excepted and appealed

Finley & Hendren, for appellants.

Hackett & Gilreath, for appellee.

HOKE J.

The court does not take the view of this evidence which seems to have impressed his honor below. The heirs at law of E. B Hendren, who were children by a former wife, admitting that the petitioner was entitled to dower in a portion of outlying land described in the petition, answered, and alleged that as to certain property, situate in the town of North Wilkesboro while the legal title thereto was in their father, E. B Hendren, at the time of his death, the same had been bought paid for, and improved from money and funds which was the sole and separate estate of their mother. Defendants alleged, further, that the deed conveying title had been made to the father by mistake, instead of their mother, who paid for the property. If these averments are made good, and there was evidence introduced tending to sustain them, they would establish a trust estate in favor of the defendants, as children and heirs at law of their mother, superior to the claim for dower, which must arise, if at all, from the estate of the father. Ray v. Long, 128 N. C. 90, 38 S.E. 291; Kirkpatrick v. Holmes, 108 N.C. 206, 12 S.E. 1037.

True the court has repeatedly held that, in order to establish a trust of this character in contravention of the terms of a written deed, the evidence...