Rush v. McPherson

• Decision Date: 04 December 1918
• Docket Number: 484.
• Citation: 97 S.E. 613,176 N.C. 562
• Parties: RUSH ET AL. v. MCPHERSON.
• Court: North Carolina Supreme Court

97 S.E. 613

176 N.C. 562

RUSH ET AL. v. MCPHERSON.

No. 484.

Supreme Court of North Carolina

December 4, 1918

Appeal from Superior Court, Randolph County; Webb, Judge.

Action by Wiley Rush and others against T. B. McPherson. Judgment for plaintiffs, and defendant appeals. No error.

Where one purchased land at a public sale as the agent of another and assigned the bid to them, and a deed was executed to him there was no resulting trust in favor of the former, although he paid the purchase price.

Plaintiffs as heirs of Wiley Rush, Sr., deceased, brought this action to have the defendant, T. B. McPherson, declared a trustee for the plaintiffs of a tract of land on the waters of Cedar Fork creek, containing 50 acres, adjoining the lands of B. J Fisher and others, and for other relief, upon the ground that McPherson bid off the land, at a sale made in December, 1891 by J. S. Cox, commissioner for their ancestor, Wiley Rogers Sr., and assigned his bid to Rogers, and the commissioner executed a deed to Rogers for the land, which was lost before its registration. In 1905, McPherson procured a deed from J. S. Cox, commissioner, for the same land. Plaintiffs also ask that this deed be declared a cloud on their title, and be canceled.

The jury rendered the following verdict:

"(1) Did J. S. Cox, commissioner, execute and deliver to Wiley Rush a deed to the Tucker land? Answer: Yes.

(2) Did Wiley Rush and T. B. McPherson, at or before the public sale of the Tucker land, on December 7, 1891, by J. S. Cox, commissioner, agree that T. B. McPherson should bid off the land for Wiley Rush? Answer: Yes.

(3) Did T. B. McPherson transfer his bid for the land to Wiley Rush? Answer: Yes.

(4) Who paid the purchase money for the Tucker land which was sold at the commissioner's sale on December 7, 1891? Answer: T. B. McPherson.

(5) Is plaintiff's right of action barred by the statute of limitations? Answer: No.

(6) What damage, if any, have plaintiffs sustained by the cutting of timber on the Tucker land by the defendant? Answer: Nothing."

Judgment was entered upon the verdict, and defendant appealed.

Dockery & Wildes, of Troy, for appellant.

I. C. Moset and Brittain & Brittain, of Ashboro, for appellees.

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

The defendant moved for a nonsuit, upon the ground that one of the plaintiffs' witnesses had testified that Wiley Rush bought the land through him partly for the purpose of concealing the fact that he owned it, until he could effect a compromise of a certain debt which was then pending. The witness further said that this was not his only reason, though it had something to do with it. The land was sold three times, and nobody would buy it, and Wiley Rush, Sr., said if they could not find a buyer that he would take it. There was evidence sufficient to show that McPherson bid in the land for Wiley Rush, Sr., assigned the bid to him, and that the commissioner thereupon executed a deed to Rush for the land, which has been lost.

The court was right when it refused the nonsuit, as in the state of the evidence it could not properly do so. There was evidence, apart from that, as to the reason of Wiley Rush, Sr., for buying the land through McPherson as his agent, which would have been sufficient to sustain a verdict for the plaintiff. The judge could not base a nonsuit on only a part of the evidence. His duty was to examine the evidence and see if, in any view of it, the plaintiff could recover, and in doing so he should have rejected all of it which was favorable to the defendant, and consider only that which was favorable to the plaintiff, as the plaintiff was entitled to the most favorable view of the evidence, and to have the part most favorable to him taken as true. The decisions to this effect are very numerous.

We held in Brittain v. Westhall, 135 N.C. 492, 47 S.E. 616;

"On a motion to nonsuit or to dismiss under the statute, which is like a demurrer to evidence, the court is not permitted to pass upon the weight of the evidence, but the evidence must be accepted as true, and construed in the light most favorable to the plaintiff, and every fact which it tends to prove must be taken as established." Daniel v. Railroad Co., 136 N.C. 517, 48 S.E. 816, 67 L. R. A. 455, 1 Ann. Cas. 718; Biles v. Railroad Co., 139 N.C. 528, 52 S.E. 129; Freeman v. Brown, 151 N.C. 111, 65 S.E. 743; Morton v. Lumber Co., 152 N.C. 54, 67 S.E. 67; Lloyd v. Railroad Co., 166 N.C. 24, 81 S.E. 1003; Christman v. Hilliard, 167 N.C. 4, 82 S.E. 949; Lamb v. Perry, 169 N.C. 436, 86 S.E. 179.

We said in Collins v. Casualty Co., 172 N.C. 543, at page 546, 90 S.E. 585, at page 586:

"The motion for a nonsuit on the evidence was properly denied. There was evidence in the case upon which the jury could return a verdict for the plaintiff, as the evidence, upon such a motion, must be construed most favorably in behalf of the plaintiff; and, if in any reasonable view of it he is entitled to recover, it should be submitted to the jury."

The rule, as thus stated, is applicable in this case. There is a view of the evidence which, if adopted by the jury, entitled plaintiffs to recover, or to a favorable verdict upon the issues. They might have found all the facts stated in the complaint and appearing in the evidence and refused to find that Wiley Rush, Sr., was attempting to deceive or defraud his creditors. This would have sustained plaintiff's cause of action. A plaintiff can be nonsuited only when the evidence, in no aspect of it, is legally sufficient to justify a verdict in the plaintiff's favor. Kearns v. Railway Co., 139 N.C. 470, 52 S.E. 131. We are therefore compelled to affirm the judge's ruling by which he declined to nonsuit the plaintiffs.

The principle under which contracts tainted with fraud are repudiated by the law is well stated and discussed by Justice Hoke in Marshall v. Dicks, 175 N.C. 38, 94 S.E. 514, where it is said:

"It is the fixed principle with us and, so far as we are aware, of all courts administering the same system of laws, that when the parties are in pari delicto they will not enforce the obligations of an executory contract which is illegal or contrary to public policy or against good morals. Nor will they lend their aid to the acquisition or enjoyment of rights or claims which grow out of and are necessarily dependent upon such a contract"--citing Fashion Co. v. Grant, 165 N.C. 453, 81 S.E. 606; Pfeifer v. Israel, 161 N.C. 409, 77 S.E. 421; Lloyd v. R. R., 151 N.C. 536, 66 S.E. 604, 45 L. R. A. (N. S.) 378; Edwards v. Goldsboro, 141 N.C. 60, 53 S.E. 652, 4 L. R. A. (N. S.) 589, 8 Ann. Cas. 479; Culp v. Love, 127 N.C. 457, 37 S.E. 476; King v. Winants, 71 N.C. 469, 17 Am. Rep. 11; Blythe v. Lovinggood, 24 N.C. 20, 37 Am. Dec. 402; Sharp v. Farmer, 20 N.C. 255; McMullen v. Hoffman, 174 U.S. 639-654, 19 S.Ct. 839, 43 L.Ed. 1117; Bartle v. Nutt, 29 U.S. (4 Pet.) 184, 7 L.Ed. 825; Armstrong v. Toler, 24 U.S. (11 Wheat.) 258, 6 L.Ed. 468; 1 Wait's Act. & Def. 43.

In King v. Winants, supra, it was held:

"That the law prohibits everything which is contra bonos mores, and therefore no contract which originates in an act contrary to the true principles of morality can be made the subject of complaint in courts of justice."

The court said, in Blythe v. Lovinggood, supra, that--

"An executory contract, the consideration of which is contra bonos mores, or against the public policy or the laws of the state, or in fraud of the state, or of any third person, cannot be enforced in a court of justice."

And in Sharp v. Farmer, supra, that--

"No action can be sustained in affirmance and enforcement of an executory contract to do an immoral act, or one against the policy of the law, the due course of justice, or the prohibition of a penal statute."

This defense, though, is allowed, not for the sake of the defendant, but of the law itself. It will not enforce what it has forbidden. Wherever the contamination reaches, it destroys. The principle to be extracted from all the cases is that the law will not lend its support to a claim founded on its violation. Coppell v. Hall, 74 U.S. (7 Wall.) 542, 19 L.Ed. 244; Cansler v. Penland, 125 N.C. 578, 34 S.E. 683, 48 L. R. A. 441. While this rule is well established and inexorably enforced when the parties are in pari delicto, it does not, as we have seen, apply to this case, as the motion to nonsuit is unavailing upon the grounds already stated. We do not mean to say that the evidence is very clear and distinct as to the alleged immoral act. Under the evidence of the witness, the jury could well have found that there was no such wrong committed, and that Wiley Rush, Sr., had another and perfectly legal motive.

There is no finding in the verdict that Wiley Rush, Sr., destroyed his deed, or even suppressed it; nor is there any resulting trust, because the jury have found that the defendant McPherson, purchased the land as the agent of Rush, and assigned his bid to him and the commissioner conveyed to him. This rebuts the idea of a resulting trust in favor of McPherson. It appears from the findings that Rush, and not McPherson, was to be the owner of the land, under a contract or agreement between them to that effect. It is not simply the case where one buys and takes the title in his own name, while another pays the money, with no contract in regard to the title or ownership of the land. Here there was an express trust, and by it the beneficial as well as the legal interest was to vest in Rush. Kelly v. McNeill, 118 N.C. 349, 24 S.E. 738; Owens v. Williams, 130 N.C. 165, 41 S.E. 93; Sykes v. Boone, 132 N.C. 199, 43 S.E. 645, 95 Am. St. Rep. 619; Avery v. Stewart, 136 N.C. 436, 48 S.E. 775, 68 L. R. A. 776; Davis v. Kerr, 141 N.C. 11, ...