Rhodes v. Raxter

• Decision Date: 04 May 1955
• Docket Number: No. 162,162
• Citation: 87 S.E.2d 265,242 N.C. 206
• Parties: Ila Mae RHODES; Clifford Raxter and wife, Susie Raxter; Azilee Ray and husband, Carl Ray, v. Fayette RAXTER and wife, Flossie Raxter.
• Court: North Carolina Supreme Court

Page 265

87 S.E.2d 265

242 N.C. 206

Ila Mae RHODES; Clifford Raxter and wife, Susie RaxterAzilee Ray and husband, Carl Ray, v.Fayette RAXTER and wife, Flossie Raxter.

No. 162

Supreme Court of North Carolina.

May 4, 1955

Lewis P. Hamlin, Jr., Salisbury, and Thomas R. Eller, Brevard, for defendants-appellants.

Ramsey & Hill, Brevard, for plaintiffs-appellees.

JOHNSON, Justice.

This proceeding was instituted as a petition for partition of land among tenants in common.

The record title was held as an estate by the entirety by J. H. Raxter and wife, Sarah Raxter, both of whom died intestate prior to the commencement of this proceeding, Sarah Raxter having died last.She was survived by the following named children, her only heirs at law: Ila Mae Rhodes, Clifford Raxter, Azilee Ray, and Fayette Raxter.

The plaintiffs, upon allegations that each of the four children owns a one-fourth interest in the land, pray the court for actual partition.

The defendants deny that the shares of the four owners are equal, and by further defense allege that by virtue of a resulting trust or a parol trust, or both, the defendantFayette Raxter owns, in addition to the share to which he is entitled by inheritance, an interest in the land to the extend of about one-third its value.

After the proceeding was instituted, Clifford Raxter and wife conveyed whatever interest they had in the lands to Fayette Raxter.

At the close of the evidence in the trial below, the defendantFayette Raxter's trust pleas were disposed of by involuntary nonsuit.

The verdict of the jury established and the judgment below decrees that the plaintiffsIla Mae Rhodes and Azilee Ray each owns a one-fourth undivided interest in the land, and that the defendantFayette Raxter owns the remaining one-half undivided interest.

Decision here turns on whether the evidence adduced below is sufficient to raise a trust in favor of the defendantFayette Raxter.The evidence discloses that about 1912 J. H. Raxter and wife, Sarah Raxter, purchased and took title to a tract of land known as the Clark place.It was paid for on the installment plan.During the early 1920's this tract was sold, and the proceeds were applied as part payment of the purchase price of the 45-acre Elzie Raxter place now in controversy.The deferred balance due on the purchase price was paid in installments over a period of years.Fayette Raxter made contributions to his parents from time to time to assist them in paying for both tracts of land.However, the evidence fails to disclose that he advanced any definite fractional portion of the purchase money, for any distinct interest in the land, when each tract was purchased.On the contrary, the evidence discloses that Fayette Raxter simply made general contributions, as for example of from $10 to $50 each, toward the purchase of the lands.Moreover, the evidence which fixes with any degree of certainty the time relationship between the contributions made by Fayette Raxter and the acquisition of title by his parents indicates that practically all the contributions were made after title passed for the purpose of assisting in paying in stallments due on the deferred balance of the purchase price.In this state of the record, wich the evidence being insufficient to afford a basis for determining what proportionate part, if any, of the purchase money was advanced by Fayette Raxter at or before the time legal title passed to his parents, the court below properly concluded there was no evidential basis for establishing in favor of Fayette Raxter any ascertainable trust interest in either tract of land based on pro tanto payment of the purchase money.It is elemental that a resulting trust arises, if at all, in the same transaction in which the legal title passes, and by virtue of consideration advanced before or at the time the legal title passes, and not from consideration thereafter paid.Beam v. Bridgers, 108 N.C. 276, 13 S.E. 112;54 Am.Jur., Trusts, section 204.See alsoOlcott v. Bynum, 17 Wall. 44, 84 U.S. 44, 21 L.Ed. 570;McWhirter v. McWhirter, 155 N.C. 145, 71 S.E. 59;Bowen v. Darden, 241 N.C. 11, 84 S.E.2d 289;54 Am.Jur., Trusts, section 216;Annotation, 42 A.L.R. 10, 54;Annotation, 34 L.Ed. 1091.

Equally untenable is the defendantFayette Raxter's alternate contention that he is entitled to a portion of the land in fee simple by virtue of a parol agreement with his parents.As to this, it is alleged and his evidence tends to show, that J. H. Raxter and wife, Sarah Raxter, entered into a verbal agreement with Fayette Raxter by which the latter was to have a designated portion of the 45-acre tract which would include the dwelling house, barn, and other improvements he assisted in placing on the land.However, it is noted that the defendants' pleading, as well as their proofs, fix the time of the alleged parol agreement as being after the legal title to the land passed to J. H. Raxter and wife, Sarach Raxter.This being so, the alleged agreement was ineffectual to raise a trust.Ordinarily, in order to raise a trust in land the parol agreement relied on must be made prior to or contemporaneously with the passing of the legal title.Frey v. Ramsour, 66 N.C. 466;Mordecai's Law Lectures, Second Edition, Vol. II, pp. 991 and 992.The rule is that 'where the legal estate is not conveyed, a trust cannot be raised by a parol declaration, even though founded upon a valuable consideration, and followed by actual occupancy and the erection of valuable improvements.'Cobb v. Edwards, 117 N.C. 244, 247, 23 S.E. 241, 242.See alsoHamilton v. Buchanan, 112 N.C. 463, 17 S.E. 159;Taylor v. Addington, 222 N.C. 393, 23 S.E.2d 318;McCorkle v. Beatty, 225 N.C. 178, 33 S.E.2d 753;G.S. § 22-2.

It necessarily follows that the evidence was insufficient to raise a trust in favor of the defendantFayette Raxter, upon either the theory of a resulting trust or of a parol trust.These pleas were properly dismissed on plaintiffs' demurrer to the evidence.

Also untenable are the defendants' assignments of error relating to the exclusion of evidence.Within this group the defendant have brought forward more than...