Waddell v. Carson

• Decision Date: 27 March 1957
• Docket Number: No. 101,101
• Parties: Floyd E. WADDELL v. Adelalde G. CARSON.
• Court: North Carolina Supreme Court

Page 222

97 S.E.2d 222

245 N.C. 669

Floyd E. WADDELL v. Adelalde G. CARSON.

No. 101.

Supreme Court of North Carolina.

March 27, 1957.

William C. Hampton, Charles M. Fortune and Zebulon Weaver, Jr., Asheville, for defendant, appellant.

J. Marvin Glance and Ward & Bennett, Asheville, for plaintiff, appellee.

PARKER, Justice.

Plaintiff married Alice Fortune Guffey on 2 May 1927. They lived together as man and wife, until her death on 12 May 1954. No issue was born of the marriage. By a prior marriage Alice Fortune Guffey was the mother of one child, the defendant Adelaide G. Carson, who was born in 1908. She married in November 1927, and has since lived in Fort Myers, Florida. On 25 March 1932 plaintiff and his wife, owning no home, entered into a written 'Land Contract' with the Prudential Insurance Company of America, in which it agreed to sell, and they agreed to buy, the real property described in the complaint to the used by them as a home. The contract designates the Insurance Company, 'party of the first part, vendor,' and Alice Fortune Waddell, and Floyd E. Waddell, her husband, the plaintiff, 'party of the second part, vendee.' The purchase price was $6,000. The contract provided that $610.83 should be paid within a fixed period, and when that was paid, the Insurance Company would convey to the party of the second part by proper deed the land therein described, and that the party of the second part would execute and deliver to the Insurance Company a mortgage on the property and note to secure the remainder of the purchase price.

Plaintiff was a Pullman car conductor, and out of his salary paid the $610.83. Thereafter, on 1 September 1932 plaintiff and his wife went to the office of the Insurance Company in Asheville, and executed and delivered to it their note signed by both in the sum of $5,389.17, representing the balance of the purchase money due on the property on that date, and a deed of trust upon the property securing their note. When this was done, the agent of the Insurance Company said the deed to the property would have to be ececuted at the home office in New Jersey, that it would be mailed to him, that the deed of trust and deed would be registered at the same time, and then the deed would be delivered to them.

The deed of trust is not in evidence. On cross-examination plaintiff testified he did not read the deed of trust before he signed it, and that under the description of the property in the deed of trust appear these words, 'being the same premises conveyed to Alice F. Waddell, one of the parties of the first part, by the party of the third part by deed of even date herewith.'

The executed and delivered deed of the Prudential Insurance Company designated Alice F. Waddell as sole grantee of the real property therein conveyed, which is the property described in the Land Contract, the Deed of Trust and the Complaint. The deed bears date of 1 September 1932, was acknowledged by the company on 27 September 1932, and was duly recorded in the public registry of Buncombe County in Book 453, page 21, on December 1932. The Insurance Company had the deed and deed of trust recorded.

In March 1932 plaintiff and wife moved into the house on the property they bought, and he and his wife used it as a home as long as she lived, and he has so used it since then. At the time of the delivery of the deed, his wife owned no real estate or money, and did not work thereafter.

Plaintiff worked as a Pullman car conductor from September 1919 to December 1943 at a monthly salary of about $250. Since then he has been a postal clerk, running out of Asheville. He has paid every penny of the purchase price of the property bought from the Insurance Company out of his salary as a Pullman car conductor. He has paid for improvements on the property in the amount of about $4,000, and has listed and paid all the taxes on this property from 1932 up to the present time, all out of his salary.

In 1945 plaintiff's wife had a stroke of paralysis. For six months she was in bed, then up for a while, then she was in bed about two years before her death in May 1954. Plaintiff and his wife were the only persons living in the house during her illness.

In July 1950 plaintiff was searching through some files at home, and ran across the deed from the Prudential Insurance Company, and read it. He saw the mistake that his name did not appear in the deed, and that was the first time he knew his name was not in the deed.

Plaintiff offered in evidence, not for the purpose of showing title in his wife, but for the purpose of corroborating himself a recorded deed, dated 18 July 1950, from Alice F. Waddell to himself, conveying to him in fee simple the property conveyed to her by the Insurance Company. The defendant did not object to the introduction of this deed. The court instructed the jury that this deed conveying the property therein described was void, and conveyed no title to plaintiff, for the reason that it did not have attached to it the certificate of the probate officer as required by G.S. § 52-12.

Plaintiff alleged that the defendant claims an estate in the real property adverse to him, and that he is entitled to have this claim, which is a cloud upon his title, removed, but if it should be held, that the deed from his wife to him did not vest in him a fee simple title to the property, that the defendant be declared by the court to be a trustee in equity of the naked legal title to the property for his benefit.

The case was tried below on the theory of a resulting trust. That theory must prevail in considering the appeal. Paul v. Neece, 244 N.C. 565, 94 S.E.2d 596.

The defendant assigns as error the denial of her motion for judgment of nonsuit made at the close of plaintiff's evidence. The defendant offered no evidence.

In this case no rights of a bona fide purchaser for value, without notice, actual or constructive, of the alleged trust have intervened.

A resulting trust is a creature of equity, and arises by implication or operation of law to carry out the presumed intention of the parties, that he, who furnishes the consideration for the purchase of land, intends the purchase for his own benefit. Bowen v. Darden, 241 N.C. 11, 84 S.E.2d 289; Lawrence v. Heavner, 232 N.C. 557, 61 S.E.2d 697, 699. 'This being true, a resulting trust does not arise where a purchaser pays the purchase price of property and takes the title to it in the name of another unless it can be reasonably presumed from the attending circumstances that the parties intend to create the trust at the time of the acquisition of the property.' Lawrence v. Heavner, supra. In the final analysis, whether or not a resulting trust arises in favor of the person paying the consideration for a transfer of property to another, depends on the intention, at the time of transfer, of the person furnishing the consideration, and such intention is to be determined from all the attendant facts and circumstances. 89 C.J.S., Trust, § 116, p. 966. See 89 C.J.S., Trusts, § 133, as to admissibility of evidence to establish a resulting trust.

The general rule, which is supported by the overwhelming weight of authority, is, that in the absence of circumstances indicating a contrary intention, where on the purchase of property, the conveyance of the legal title is taken in the name of one person, for whom the purchaser is under no legal obligation to provide, and the purchaser has paid part of the purchase price and has incurred an absolute obligation to pay the remainder as a part of the original transaction of purchase at or before the time of conveyance, a resulting trust arises by operation of law in favor of the person furnishing all the consideration, and the person thus obtaining the title is a trustee for his benefit. Rhodes v. Raxter, 242 N.C. 206, 87 S.E.2d 265; Bullman v. Edney, 232 N.C. 465, 61 S.E.2d 338; Creech v. Creech, 222 N.C. 656, 24 S.E.2d 642; Wilson v. Williams, 215 N.C. 407, 2 S.E.2d 19; Kelly Springfield Tire Co. v. Lester, 190 N.C. 411, 130 S.E. 45; Summers v. Moore, 113 N.C. 394, 18 S.E. 712; Greensboro Bank & Trust Co. v. Scott, 184 N.C. 312, 114 S.E. 475; Scanlon v. Scanlon, 6 Ill.2d 224, 127 N.E.2d 435; 89 C.J.S., Trusts, § 120, pp. 973-974.

However, as here, where the husband seeking to establish a resulting trust offers evidence to the effect that the conveyance was made to his wife on a consideration paid in full by him, nothing else appearing, the law presumes that it is a gift, and no resulting trust arises. Honeycutt v. Citizens National Bank, 242 N.C. 734, 89 S.E.2d 598; Shue v. Shue, 241 N.C. 65, 84 S.E.2d 302; Bass v. Bass, 229 N.C.171, 48 S.E.2d 48; Carlisle v. Carlisle, 225 N.C. 462, 35 S.E.2d 418. This is a rebuttable presumption of fact. Bass v. Bass, supra; Carlisle v. Carlisle, supra; Bank of Vance v. Crowder, 194 N.C. 312, 139 S.E. 601. To rebut the presumption of a gift to his wife and to establish a resulting trust, the evidence must be clear, strong, cogent and convincing. Honeycutt v. Citizens National Bank, supra; Shue v. Shue, supra; Carlisle v. Carlisle, supra.

In Flanner v. Butler, 131 N.C. 155, 42 S.E. 547, the following issues were submitted to the jury: '(1) Was the land described in article 3 of the complaint purchased with the money of the plaintiff? (2) If so, was the deed to the defendant made to it without his knowledge or consent? (3) Is the plaintiff's cause of action barred by the statute of limitations?' The jury answered the first two issues Yes, and the third No. The Court in considering whether a trust could be established between husband and wife, since property purchased by the husband and conveyed to the wife is presumed to be a gift, said: 'But this is only the presumption of a fact the law makes, which may be rebutted by evidence, and when this is done the parties then stand as if they were not man and wife,--that is, they stand as other parties,-- and the general rule prevails. ...