Wise v. Raynor

• Decision Date: 01 April 1931
• Docket Number: 106.
• Citation: 157 S.E. 853,200 N.C. 567
• Parties: WISE v. RAYNOR.
• Court: North Carolina Supreme Court

157 S.E. 853

200 N.C. 567

WISE v. RAYNOR.

No. 106.

Supreme Court of North Carolina

April 1, 1931

Appeal from Superior Court, Wayne County; Devin, Judge.

Action by Roger M. Wise against Dary A. Raynor. Judgment for the defendant, and the plaintiff appeals.

No error.

In action wherein widow asserted resulting trust in property conveyed to herself and husband jointly, widow's testimony that she directed draftsman to make deed to her held admissible.

In action wherein widow asserted resulting trust in property conveyed to herself and deceased husband jointly, testimony showing widow looked after husband before his death held competent.

This is an action brought by plaintiff against the defendant to restrain her from cutting timber. The plaintiff contends that he was owner in fee of a certain tract of land subject to the life estate of the defendant.

The defendant set up in her answer: "That at the time the land was purchased, it was agreed between the answering defendant and Julius H. Raynor, that the deed should be made to this answering defendant, conveying the said land to her in fee simple; that the said funds were entrusted by this answering defendant to Julius H. Raynor, as a Trustee for her; that the said lands were conveyed to Julius H. Raynor and this answering defendant for life and then to Roger M Wise, that the said Julius H. Raynor and Roger M. Wise, held any and all interest in the said lands, as Trustee for this answering defendant." The deed was made November 30 1901, by Zilphia C. Boyette to Julius H. Raynor and Dary A Raynor, his wife. It contains the following: "The condition of this deed is such that after the death of the said Julius H. Raynor and wife, Dary A. Raynor, the title to the said hereby conveyed lands is to be vested in Roger Wise, the son of Dary A. Raynor, and the lawful heirs of his body. *** To have and to hold, the aforesaid tract of land and all privileges and appurtenances thereunto belonging to the said Julius H. Raynor and wife, Dary A. Raynor, during their lives, and then to the said Roger Wise and heirs of his body, to their only use and behoof."

The prayer of the answer was to the effect that the plaintiff be declared a trustee of a parol and resulting trust for the cestui que trust, the defendant. The plaintiff replied, and as a defense set up that the land was paid for solely by Julius H. Raynor, and further pleaded the statute of limitations. The restraining order was continued until the hearing. Julius H. Raynor died January 17, 1927. The present action was instituted January 2, 1930.

The issues submitted to the jury, and their answers thereto, were as follows:

"1. Did the defendant, Dary A. Raynor, furnish the money for the purchase of the land described in the pleadings and was deed therefor taken in name of Julius H. Raynor and Dary A. Raynor for their lives, with remainder to plaintiff, Wise, without the knowledge and consent of said Dary A. Raynor, as alleged in the answer? Ans: Yes.

"2. Is the claim of Dary A. Raynor, barred by the statute of limitations? Ans: No."

The plaintiff made numerous exceptions and assignments of error, and the material ones and necessary facts will be considered in the opinion.

Kenneth C. Royall, D. C. Humphrey, and Dickinson & Freeman, all of Goldsboro, and Andrew C. McIntosh, of Chapel Hill, for appellant.

J. Faison Thomson, of Goldsboro, for appellee.

CLARKSON J.

In Perry on Trusts and Trustees (7th Ed.) vol. 1 (1929) part § 126, p. 186, speaking to the subject of resulting trusts, citing a wealth of authorities, we find: "Where, upon a purchase of property, the conveyance of the legal title is taken in the name of one person, while the consideration or a part of it is given or paid by another, not in the way of a loan to the grantee, the parties being strangers to each other, a resulting trust immediately arises from the transaction (unless it would be enforcing a fraud to raise a resulting trust), and the person named in the conveyance will be a trustee for the party from whom the consideration proceeds." Part section 144, p. 234; "Probably there is no such presumption when a wife turns over property to her husband to be used by him in purchasing a definite piece of property. The natural presumption would usually be that she intended that he should act as her agent in acquiring the property and a trust would result if he took title in his own name." Part section 141, p. 225, 226: "Courts will not enforce a resulting trust after a great lapse of time, or laches on the part of the supposed cestui que trust, especially when it appears that the supposed nominal purchaser has occupied and enjoyed the estate. But if the trust is admitted, and there has been no adverse holding, lapse of time is no bar." Note 1: "Joint occupation by husband and wife is not ordinarily adverse to either's claim of a resulting trust." Miller v. Baker, 160 Pa. 172, 28 A. 648; Id., 166 Pa. 414, 31 A. 121, 45 Am. St. Rep. 680; Berry v. Wiedman, 40 W.Va. 36, 20 S.E. 817, 52 Am. St. Rep. 866; Fawcett v. Fawcett, 85 Wis. 332, 55 N.W. 405, 39 Am. St. Rep. 844.

In the present action, the deed, in the premises, says, "To her (the grantor) paid by the said Julius H. Raynor and wife Dary A. Raynor"; and the habendum clause, "to have and to hold, the aforesaid tract of land and all privileges and appurtenances thereunto belonging to the said Julius H. Raynor and wife, Dary A. Raynor, during their lives, and then to the said Roger Wise and heirs of his body, to their only use and behoof."

In the case of Deese v. Deese, 176 N.C. at pages 527, 528, 97 S.E. 475, is the following: "This was an action brought by Annie M. Deese against Jesse M. Deese, her husband, to declare him a trustee of a tract of land the purchase money of which was paid by Annie M. Deese, but the title to which was taken to Jesse M. Deese and Annie M. Deese. *** The jury finding, by consent, that the land was purchased with the separate property of Annie M. Deese which had been derived from the sale of land belonging to her, there was a resulting trust in favor of the wife. Lyon v. Akin, 78 N.C. 258; Cunningham v. Bell, 83 N.C. 330. Even when the wife furnishes the purchase money and requests that the deed be made to her husband, there is still a resulting trust to her. Sprinkle v. Spainhour, 149 N.C. 226, 62 S.E. 911, 25 L. R. A. (N. S.) 167, which says: 'It is one of the essentials of the peculiar estate by entireties sometimes enjoyed by husband and wife, that the spouses be jointly entitled as well as jointly named in the deed. Hence, if the wife alone be entitled to a conveyance, and it is made to her and her husband jointly, the latter will not be allowed to retain the whole by survivorship. And it matters not if the conveyance is so made at her request, because, being a married woman, she is presumed to have acted under the coercion of her husband." D'

In Kelly Springfield Tire Co. v. Lester, 190 N.C. at page 416, 130 S.E. 45, 48, we find: "The payment of the purchase money raises a resulting trust in favor of him who 'furnishes' or 'pays' or 'owns' the purchase money, unless a contrary intention, or a contrary presumption of law, prevents. [Citing numerous authorities]. This trust arises between husband and wife, in favor of the wife, when land was deeded to both husband and wife. [Citing numerous authorities]."

In Carter v. Oxendine, 193 N.C. at page 480, 137 S.E. 424, 425: "It is thoroughly established by law in this state that, if a husband conveys land to his wife, or procures the title to be made to her by another the law presumes it is a gift to the wife. Singleton v. Cherry, 168 N.C. 402, 84 S.E. 698; Nelson v. Nelson, 176 N.C. 191, 96 S.E. 986; Tire Co. v. Lester, 190 N.C. 416, 130 S.E. 45." Crocker v. Vann, 192 N.C. at page 429, 135 S.E. 127; Wallace v. Phillips, 195 N.C. at page 670, 143 S.E. 244.

26 R. C. L. part § 76, p. 1230: "A resulting trust may be established by parol evidence, even in direct contradiction of a warrant, patent, or deed. Resulting trusts are generally specifically excepted from the operation of the statute of frauds or statute of trusts and uses." Part section 75, p. 1229; "As a general rule, declarations made by a person in possession of real estate, as to his interest or title in the property, may be given in evidence against those who subsequently derive title under him, in the same manner as they could have been used against the party himself if he had not parted with his possession or interest. On the other hand it is equally well settled that no declarations of a former owner of the property, made after he had parted with his interest therein, can be received in evidence to effect the legal or equitable title to the premises. These rules are applicable to resulting trusts. *** While evidence used to establish a resulting trust must be of facts and statements of the parties, which happened or were made contemporaneously with the purchase, an exception to this rule is that the declarations of the trustee may be received in evidence, if made at any time, to establish such a trust."

In Norton v. McDevit, 122 N.C. at page 758, 30 S.E. 24 26, we find: "On the trial, the plaintiff proposed to prove by one Treadway that he heard Mary, the mother of plaintiff, say that she was holding the land for the children. This was objected to by defendant, and excluded by the court. We do not see why this evidence was not competent, being a declaration while in possession, explaining the manner in which she was holding the land; she being the party under whom defendant is claiming." We further find in this case at pages 758, 759, of 122 N. C., 30 S.E. 24, 27: "This is not what is known as an "express trust,' against which the statute will not...