Vinson v. Smith, 257
Decision Date | 20 March 1963 |
Docket Number | No. 257,257 |
Citation | 259 N.C. 95,130 S.E.2d 45 |
Parties | Mrs. Irene L. VINSON v. Anne Lee SMITH. |
Court | North Carolina Supreme Court |
Plumides & Plumides, by Warren D. Blair, Charlotte, for defendant appellant.
James J. Caldwell, Charlotte, for plaintiff appellee.
The case was tried below on the theory of a resulting trust. Plaintiff's evidence tends to show that Dr. Ralph Reid and his wife executed a deed to these lots to plaintiff, but there is no evidence in the record that this deed was ever delivered. No such deed is recorded. Elliott v. Goss, 250 N.C. 185, 108 S.E.2d 475.
Plaintiff alleges in paragraph four of her complaint: In replying to this paragraph of the complaint defendant states in paragraph four of her answer: 'It is an elementary rule that issues arise upon the pleadings, and, if a fact is alleged by one party and admitted by the other, no issue arises therefrom, but both parties are bound by the allegation so made, and evidence offered in relation thereto is irrelevant.' State ex rel. R. H. Lee v. Martin, 191 N.C. 401, 132 S.E. 14.
This Court said in Creech v. Creech, 222 N.C. 656, 24 S.E.2d 642:
To the same effect see Waddell v. Carson, 245 N.C. 669, 97 S.E.2d 222; Bowen v. Darden, 241 N.C. 11, 84 S.E.2d 289; 89 C.J.S. Trusts § 116.
In Rhodes v. Raxter, 242 N.C. 206, 87 S.E.2d 265, it is said:
'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.'
A resulting trust arises, if at all here, from the payment of the purchase money, and accordingly it is essential to the creation of such a trust that the money or assets furnished by or for the person claiming the benefit of the trust should enter into the purchase price of the property at or before the time of purchase. Hodges v. Hodges, 256 N.C. 536, 124 S.E.2d 524; s. c., 257 N.C. 774, 127 S.E.2d 567; Hoffman v. Mozeley, 247 N.C. 121, 100 S.E.2d 243; Rhodes v. Raxter, supra; Wilson v. Williams, 215 N.C. 407, 2 S.E.2d 19; Summers v. Moore, 113 N.C. 394, 18 S.E. 712; Young v. Greer, 250 Ala. 641, 35 So.2d 619; Elliott v. Wood, 95 Cal.App.2d 314, 212 P.2d 906; Davis v. Roberts, 365 Mo. 1195, 295 S.W.2d 152; Patrick v. McGaha, Tex. Civ.App., 164 S.W.2d 236; 89 C.J.S. Trusts § 121, page 975.
On the first issue, 'Did the plaintiff pay to said Dr. Ralph C. Reid the purchase price for the land conveyed to the defendant, as alleged in the complaint?', the burden of proof was on plaintiff to satisfy the jury by clear, strong, and convincing evidence of her contentions in respect thereto, and if she did not, the jury should answer that issue, No. A mere preponderance of the evidence does not suffice. Hodges v. Hodges, 256 N.C. 536, 124 S.E.2d 524; Bowen v. Darden, supra; McCorkle v. Beatty, 226 N.C. 338, 38 S.E.2d 102; Carlisle v. Carlisle, 225 N.C. 462, 35 S.E.2d 418; Summers v. Moore, supra; Stansbury, North Carolina Evidence, section 213.
Prior to the beginning of the judges charge to the jury, de...
To continue reading
Request your trial-
Greer v. United States
...a tenant in common with her deceased husband. Bullman v. Edney, 232 N.C. 465, 61 S.E.2d 338 (1950). See also, Vinson v. Smith, 259 N.C. 95, 130 S.E.2d 45 (1963); Hoffman v. Mozeley, 247 N.C. 121, 100 S.E.2d 243 (1957); Waddell v. Carson, 245 N.C. 669, 97 S.E.2d 222 (1957). Indeed, the North......
-
Daniel Boone Complex, Inc. v. Furst
...duty to provide, a trust in favor of the payor arises by operation of law and attaches to the subject of the purchase. Vinson v. Smith, 259 N.C. 95, 130 S.E.2d 45 (1963); Grant v. Toatley, 244 N.C. 463, 94 S.E.2d 305 (1956); Summers v. Moore, 113 N.C. 394, 18 S.E. 712 (1893); Accord, Campbe......
-
Patterson v. Strickland
...of the trust should enter into the purchase price of the property at or before the time of purchase).'" (quoting Vinson v. Smith, 259 N.C. 95, 98, 130 S.E.2d 45, 48 (1963)). If plaintiff were required to make her payment before or at the time of the delivery of the deed, her resulting trust......
-
Tarkington v. Tarkington
...the plaintiff to prove by clear, strong and convincing evidence that she provided the consideration for the purchase. Vinson v. Smith, 259 N.C. 95, 130 S.E.2d 45 (1963). A mere preponderance of the evidence is not sufficient. Hodges v. Hodges, 256 N.C. 536, 124 S.E.2d 524 (1962); McWhirter ......