Jones v. Jones

• Decision Date: 13 December 1913
• Citation: 80 S.E. 430,164 N.C. 320
• Parties: JONES ET AL. v. JONES ET AL.
• Court: North Carolina Supreme Court

80 S.E. 430

164 N.C. 320

JONES ET AL. v. JONES ET AL.

Supreme Court of North Carolina

December 13, 1913

Appeal from Superior Court, Buncombe County; Adams, Judge.

Civil action by W. C. Jones and another against Julia E. Jones and another to establish a parol trust in land. From a judgment for plaintiffs, defendant named appeals. Affirmed.

A trust may be ingrafted by parol on a deed of bargain and sale containing a declaration of the use in favor of the grantee.

In the absence of a statute relating specifically to parol trusts the statute of frauds, requiring contracts concerning land to be in writing, does not affect the validity of trusts, or the evidence by which they may be established.

There was allegation, with evidence on part of plaintiff tending to show, that in March, 1897, G. T. Jones, now deceased, by deed of bargain and sale, reciting a valuable consideration paid in the sum of $200, conveyed to his daughter Julia a valuable tract of land, the tract in controversy, and at the time of conveyance made no consideration was paid, and the daughter took and held the land with the understanding and agreement existent at the time, that she would hold the land in trust for the grantor and then for his children, the present plaintiff and defendants; that said G. T. Jones having died the defendants repudiated the said trust, insisting that the deed conveyed to her an absolute estate, and the present action was instituted to enforce the said trust in favor of the other children. The allegations of complaint were fully denied in the answer, and motion for nonsuit was duly made and overruled.

The following issues were submitted and verdict rendered:

"1. Was there a parol agreement between G. T. Jones and the defendant Julia E. Jones, at or before the delivery of the deed of March 19, 1897, to the effect that said Julia E Jones would accept said deed and hold the lands therein described for the benefit of said G. T. Jones during his lifetime? Answer: No.

2. Was there a parol agreement between G. T. Jones and the defendant Julia E. Jones, at or before the delivery of the deed of March 19, 1897, to the effect that said Julia E. Jones would hold the lands therein described for the benefit of the children of G. T. Jones, after his death, to wit, W. C. Jones, G. H. Jones, Julia E. Jones, and Tennie Jones? Answer: Yes.

3. Is plaintiffs' action barred by the statute of limitations? Answer: No.

4. What is the annual rental value of said land? Answer: Nothing."

Jas. H. Merrimon and Harkins & Van Winkle, all of Asheville, for appellant.

Wells & Swain, of Asheville, for appellees.

HOKE, J. (after stating the facts as above).

It was earnestly insisted for defendant, as we understood the position, that a trust of this character could not be ingrafted on a deed of bargain and sale, because the deed itself contained a declaration of the use in favor of the grantee, and, being in writing, the same could not be contradicted by parol evidence; (2) that the recital of a valuable consideration of $200, contained in the written deed, would prevent the establishment of such a trust by parol. But a long series of authoritative decisions, in this state, are against defendant on both of these positions.

In Gaylord v. Gaylord, 150 N.C. 227, 63 S.E. 1028, the court said: "The seventh section of the English statute of frauds, forbidding 'the creation of parol trusts or confidences of lands, tenements or hereditaments, unless manifested or proved by some writing,' not being in force with us, and no statute of equivalent import having been enacted, these parol trusts have a recognized place in our jurisprudence, and have been sanctioned and upheld in numerous and well-considered decisions"--citing Avery v. Stewart, 136 N.C. 436, 48 S.E. 775, 68 L R. A. 776; Sykes v. Boone, 132 N.C. 199, 43 S.E. 645, 95 Am. St. Rep. 619; Shelton v. Shelton, 58 N.C. 292; Strong v. Glasgow, 6 N. C. 289. In Gaylord's Case, the effort to establish the trust in favor of the grantor in the deed failed; the controlling principle on that question being stated as follows: "Upon the creation of these estates, however, our authorities seem to have declared or established the limitation that, except in cases of fraud, mistake, or undue influence, a parol trust, to arise by reason of the contract or agreement of the parties thereto, will not be set up or ingrafted in favor of the grantor upon a written deed conveying to the grantee the absolute title, and giving clear indication on the face of the instrument that such a title was intended to pass." It was no doubt in deference to this principle that a verdict on the first issue was rendered in favor of defendant, that issue being addressed to the interest alleged in favor of G. T. Jones, the grantor in the deed; but as to the children who were not directly parties to the instrument it is well established that a parol trust of this kind may be established by parol declarations cotemporary with the making of the deed or prior thereto and existent at the time the same was executed and title passed. See cases referred to of Sykes v. Boone, supra, and Avery v. Stewart...