Nelson v. Nelson

• Decision Date: 09 October 1918
• Docket Number: 222.
• Parties: NELSON v. NELSON.
• Court: North Carolina Supreme Court

96 S.E. 986

176 N.C. 191

NELSON v. NELSON.

No. 222.

Supreme Court of North Carolina

October 9, 1918

Appeal from Superior Court, Lenoir County; Calvert, Judge.

Suit by Almira Nelson against Robert Nelson. Judgment for plaintiff and defendant appeals. Affirmed.

Civil action tried upon motion for judgment upon the pleadings.

Where a husband pays the purchase money for land and has a deed made to his wife, no resulting trust arises, because the law presumes that the husband had the deed made to his wife for her benefit.

Rouse & Rouse, of Kinston, for appellant.

Dawson Manning & Wallace and Cowper, Whitaker & Hamme, all of Kinston, for appellee.

BROWN J.

Plaintiff is the wife of defendant, living separate and apart from her husband, but not divorced. She sues to recover possession and control of her landed estate from the defendant and to enjoin him from receiving the rents and profits or in any way interfering with her exclusive control of it. The defendant admits he and his wife have separated and that the property described in the complaint is the separate estate of the plaintiff. He avers that they were married in 1875 and separated in 1916, and that during that period he made valuable improvements upon his wife's land amounting to $5,000. He asks that the lands be subjected to said charge in his favor, and that he be allowed to remain in possession and continue in receipt of rents and profits until such sum is repaid.

It has been settled in this state that the wife, whether separated from her husband or living with him, is entitled to the management and control of her separate estate and to receive the rents and profits. Manning v. Manning, 79 N.C 301. This decision has been cited and approved in a large number of cases cited in the annotations. Its authority cannot now be controverted.

Recognizing the controlling force of the precedents, the defendant sets up a claim for betterments and seeks to subject the land to such lien. The defendant does not aver in his answer that such improvements were made in pursuance of a written contract probated and approved as required by section 2107 of the Revisal, but we presume bases his claim upon the statute relating to betterments or upon the principles of equity. It is quite certain that the defendant has no claim under the statute, for he had no reasonable ground to believe that he had a good title to the land. He did not put the improvements...