Hunt v. Hunt

• Decision Date: 18 March 1964
• Docket Number: No. 380,380
• Citation: 261 N.C. 437,135 S.E.2d 195
• Parties: Pink L. HUNT and Howard J. Hunt v. Albert A. HUNT. Philip E. LUCAS, Public Administrator of the Estate of Curtis T. Hunt, Deceased, v. Albert A. HUNT.
• Court: North Carolina Supreme Court

Page 195

135 S.E.2d 195

261 N.C. 437

Pink L. HUNT and Howard J. Hunt v. Albert A. HUNT.

Philip E. LUCAS, Public Administrator of the Estate of Curtis T. Hunt, Deceased, v. Albert A. HUNT.

No. 380

Supreme Court of North Carolina.

March 18, 1964

White & Crumpler and Hudson, Ferrell, Petree, Stockton, Stockton & Robinson, Winston-Salem, for plaintiff appellees.

Deal, Hutchins & Minor, Winston-Salem, for defendant appellant.

RODMAN, Justice.

Defendant assigns as error the Court's refusal to allow his motions for nonsuit and directed verdicts. Because these assignments are fundamental and are the errors principally relied on by defendant, they must be examined and their merit evaluated before considering other asserted errors. Since the motions are directed to all five causes of action alleged by plaintiffs, each having a foundation distinct from the others, we deal with the motions as they relate to each cause of action.

(1) Proceeds of sale of the Homeplace and Miller property. The following facts are admitted in the pleadings or established by the evidence: These properties were devised to defendant and his brothers by their father. The four sold to the Highway Commission. The check for the purchase price payable to all four grantors was endorsed by three and delivered to defendant. He endorsed and deposited the funds in a special account in his individual name. If nothing else appeared, the Court would have been warranted in directing the jury to find that each of the plaintiffs was entitled to one-fourth of the amount paid by the Highway Commission. To prevent that result, defendant alleged, and offered evidence from which the jury could have found, a dispute existed with respect to Pink's and Howard's interest in the fund (why and how controversy with respect to the division of the fund arose is not made clear by the evidence.) This dispute, according to defendant's allegations and evidence, was settled by the payment of $5,000 to Pink and $3,500 to Howard for their interest in the moneys received from the Highway Commission, as well as the 120 acre farm and the 10 1/4 acre tract in Forsyth. This was an affirmative defense. The burden of proof was on defendant. Ciline Paving Company v. Southland Speedways, Inc., 250 N.C. 358, 108 S.E.2d 641; Winkler v. Appalachian Amusement Company, 238 N.C. 589, 79 S.E.2d 185.

Defendant's contention that the language, 'Full settlement with P. L. Hunt for his part of the T. Hunt Estate in Forsyth and Davidson Counties,' appearing on his check given when P. L. Hunt conveyed his interest in the 10 1/4 acre tract and the 120 acre farm in Davidson County is, as a matter of law, sufficient to defeat plaintiff's claims to the moneys paid by the Highway Commission cannot be sustained. The word 'estate' as commonly used has many meanings. Wachovia Bank & Trust Company v. Wolfe, 243 N.C. 469, 91 S.E.2d 246; In re Estate of Wright v. Ball, 204 N.C. 465, 168 S.E. 664; Powell v. Woodcock, 149 N.C. 235, 62 S.E. 1071.

Whether the word 'estate' written on check was understood by the parties to include the moneys paid by the Highway Commission was a question for the jury. Durham Lumber Company v. Wrenn-Wilson Construction Company, 249 N.C. 680, 107 S.E.2d 538; Williams v. Greensboro Fire Insurance Company, 209 N.C. 765, 185 S.E. 21; Wallace v. Bellamy, 199 N.C. 759, 155 S.E. 856; Hite v. Aydlett, 192 N.C. 166, 134 S.E. 419. Plaintiffs testified that the checks were given and received in payment for their share of the 10 1/4 acres Forsyth County tract and the Davidson County land. To support their contention as to the meaning of the word 'estate,' they point to the fact that the revenue stamps on their deeds were exactly the amount they would have affixed for a sale for $8,500. They testified that the value of these two pieces was $20,000. They call attention to the fact that the moneys which the Highway Commission paid was not paid to the personal representative of the T. Hunt Estate but to them as individuals. They properly say that where an heir sells land which he inherits from his parent, the proceeds derived from that sale cannot be held as a matter of law to be a part of a parent's estate. Defendant is in no position to complain that the Court called on the jury to ascertain the meaning of the language defendant put on the check. It follows from what has been said that the Court properly refused to allow the motions to nonsuit or to direct verdicts on the first causes of action.

(2) Pink's and Howard's claims for rent. The pleadings and evidence establish the fact that the legal title to this property was in Mrs. Hunt, mother of the four children. She died intestate. There is evidence for plaintiffs showing that Albert collected rents from this property from 1948 until Curtis' death in December 1958. Pink, Howard and Albert executed a deed to Curtis for this property in September 1958. Co-tenancy having been established, plaintiffs were entitled to an accounting for the rents collected. Lovett v. Stone, 239 N.C. 206, 79 S.E.2d 479, 60 A.L.R.2d 780; Whitehurst v. Hinton, 209 N.C. 392, 184 S.E. 66; McPherson v. McPherson, 33 N.C. 391; 14 Am.Jur. pp. 99-100. Defendant was not entitled to nonsuits or directed verdicts on this cause of action for rents.

(3) Belews Street property. The pleadings and the evidence show that this property was conveyed to Albert prior to 1943. It was his home. Plaintiff administrator, as a basis for his claim for the moneys paid by the Highway Commission for this property, alleges a parol contract by Albert in 1943 to convey to Curtis. He alleges he took possession, and erected tenant houses thereon. Albert, as his agent, collected the rents from these properties for Curtis. Albert, in recognition of Curtis' ownership of this property, and at Curtis' direction, conveyed it to the Highway Commission. He agreed to hold the proceeds for Curtis' benefit. Albert denied the alleged contract. He admitted Curtis had taken possession and erected houses thereon--Plaintiff offered evidence to establish the parol contract to convey, his payment in 1943 of the purchase price, and the erection of improvements. This evidence was not sufficient to establish an enforceable contract. Defendant's denial of the alleged contract to convey, 'invoked the statute of frauds as effectively as if it had been expressly pleaded. Furthermore, a denial of the agreement is equivalent to a plea of the statute [of frauds].' Humphrey v. Faison, 247 N.C. 127, 100 S.E.2d 524; McCraw v. Llewellyn, 256 N.C. 213, 123 S.E.2d 575. The fact that witnesses were permitted to testify without objection to the parol contract did not make it enforceable. Jamerson v. Logan, 228 N.C. 540, 46 S.E.2d 561, 15 A.L.R.2d 1325; Grantham v. Grantham, 205 N.C. 363, 171 S.E. 331. We fail to discover in the record any evidence to the effect that Albert conveyed this property to the Highway Commission at the direction of Curtis or that...