National Bank v. Gilmer

• Decision Date: 03 December 1895
• Citation: 23 S.E. 333,117 N.C. 416
• Parties: NATIONAL BANK OF GREENSBORO v. GILMER et al.
• Court: North Carolina Supreme Court

23 S.E. 333

117 N.C. 416

NATIONAL BANK OF GREENSBORO v. GILMER et al.

Supreme Court of North Carolina

December 3, 1895

On petition to rehear. Dismissed.

For prior opinion, see 22 S.E. 2.

To establish a parol trust in land in favor of a person whose money is alleged to have gone into the purchase and improvement of the land, the evidence must show the existence of the facts constituting the trust at the time of the transmission of the legal title.

Watson & Buxton, Jones & Patterson, and Glenn & Manly, for petitioners.

Dillard & King, D. L. Russell, and Ricaud & Weill, contra.

FURCHES J.

This case is regarded as one of importance to the parties and to the public, and as two gentlemen of recognized learning practicing in this court, have certified that they have examined the opinion delivered at the last term, and published in 116 N.C. 684, 22 S.E. 2, and the authorities there cited, and that they are of the opinion that there are manifest errors in this opinion, and a rehearing having been ordered, it becomes our duty to give the case a careful reconsideration. The petition points out two questions involved in the case, and decided by this court, as erroneous, and the order for a rehearing is confined to these questions. The first error assigned is as to what is called in the pleadings the "Factory Lot," which the defendant J. E. Gilmer conveyed to his sons, J. L. Gilmer and Powell Gilmer, on the 2d day of August, 1893. As grounds of this error the petition alleges that the court overlooked the evidence of the defendant Gilmer, as follows: "That the money in the firm of Edmonds & Gilmer was his wife's money, and which he took out of the firm by express agreement between his wife and himself that he should take out the funds, buy the lot, and construct the factory on it." We have read the evidence of the defendant Gilmer with care, and fail to find the paragraph quoted in the petition, as shown above. The petition also states that one of the notes executed by the defendant Gilmer to his wife as in 1892 was error, and should have been 1882; but upon the argument it was admitted by one of the counsel for defendant that it was given in 1892, as it appears of record. The learned counsel who certify to the manifest error of the court say that the strongest view of the evidence for the defendant should have been taken by the court, whereas the court selected the strongest part of the evidence for the plaintiff, and quotes the following from the evidence of the defendant J. E Gilmer, to wit: "It was an agreement--an understanding--between me and my wife that I should use her money in this way." And further on he says: "$9,000 or $10,000 of her money went into the factory. As for money collected in 1892, I put it, by her express direction, in the factory real estate." We agree to the proposition that the court should have considered the evidence most favorable to the defendant; that is, if front the evidence of one witness the jury might have found for defendant; and from the evidence of another, or all the other witnesses, they should have found for the plaintiff, the court should have submitted the issue of fraud to the jury, as the court could not tell which witness the jury would believe. But that is not this case. Here all the evidence relied upon by defendant comes from the defendant himself, corroborated to some extent, as he alleges, by the testimony of Edmonds and Dr. Lash. Therefore the testimony of the defendant Gilmer and of Edmonds and Dr. Lash, that contradicts the statement above quoted (and this is the strongest statement for him to be found in his testimony), is of equal credibility as that for him. If none of it is to be believed, then it proves nothing. But if one part of it is to be believed the other part is to be believed. Therefore, in order to determine whether it proves the proposition,--that is, whether it proves that defendant Gilmer used his wife's money in the purchase of the factory property, out of which a trust was created, and resulted in her and her heirs,--the whole of his testimony upon this point should be considered together as a whole. It therefore becomes necessary that we should make a few quotations from the evidence of the defendant Gilmer which we proceed to do as follows: "The money that I used of hers I gave my notes for. These notes were given the time they bear date. Amount thereof, $9,200, and interest amounting now to more than $13,000. In 1891 they amounted to $11,000 or $12,000. The notes, ten in number, payable to Mrs Laura A. Gilmer, put in evidence. One of these notes was given March, 1892, for her half interest in the Florida lands. Another note for two bonds gotten by her from J. G. Lash's estate. I gave these notes to my wife, and she told me to keep them for her in my safe. These notes were for the large sum of money mentioned in the deed." Again: "The construction of the warehouse paid for by checks of Edmonds & Gilmer and by currency, some of it belonged to said firm and some of it to myself. *** In 1891 I bought Edmonds out, giving him checks on the Wachovia Bank. I got the deed May 26, 1891, paying him $8,000. *** The notes were my wife's property. I owed them to her at her death, and I was keeping them for her in my safe. *** The money I got from her from 1880 to 1886 I used in general course of business. As for money collected in 1892, I put it by her express directions in the factory real estate." E. C. Edmonds, former partner, and witness for defendant J. E. Gilmer, testified as follows: "In buying lot in Winston, we paid for it $2,400 out of the funds of Edmonds & Gilmer. Mrs. Gilmer had said that we must buy a lot, and build a factory thereon. The factory cost about $14,500. Was paid for by checks of Edmonds & Gilmer. Sometimes we would pay cash, and be reimbursed from funds that came into the business. We began business in December, 1890, and dissolved in August, 1891. J. E. Gilmer said he wanted the factory to give to his sons. *** The lot was bought and factory built with assets of Edmonds & Gilmer. Mr. Gilmer paid me for my interest in 1891." Dr. Lash, brother-in-law, and witness for defendant Gilmer, testified as follows: "On two occasions I remember Capt. Gilmer and his wife being present. She told of her money being kept separate. She said he was not to use it in his...