Butler v. . McLean , 122 N.C. 357 ( 1898 )

This is an action to have a trust declared in favor of the plaintiff for one-half of a body of land conveyed by deed of Jesse Morley to his son-in-law, W. S. McLean, and the question turns upon the following words in the deed: "That I, Jesse Morley, for and in consideration of the sum of $400, as an advancement to his wife, Polly Cornelia, and also for the further consideration of the sum of $400 in hand (358) paid by the said William S. McLean, do grant, etc., unto the said William S. McLean, his heirs and assigns forever," the land described.

We have no guide except the deed. In the absence of an express trust we then have to look for the intent of the grantor. The books show many expressions from which the intent is gathered, and many others which fail to satisfy the courts that a trust was intended.

Trusts have been declared when the estate is purchased in the name of one person and the consideration is paid by another; also, where the intention not to benefit the grantee is expressed in the conveyance, as by saying "upon trust."

A familiar case under the first is where the husband buys and takes the title to himself alone, but pays for the land with his wife's money — a trust results in her favor. Lyon v. Akin, 78 N.C. 258. It sometimes occurs that the expression supposed to lay the foundation for a trust imposing an obligation merely furnishes the motive which led to an absolute gift or conveyance. And it is probable in some instances that the grantor has no clear idea himself of what he is doing. It is certain, however, that it must appear in some way that he intended to create a trust, otherwise the court cannot declare its existence. Sometimes the donor or grantor may have reasons to convey an absolute estate to the husband and leave the wife to take such incidental benefits as arise from her marital relations with him. Where there is uncertainty the court will not declare a trust, because the intent fails to appear, and the equivocal words will signify a wish only. An able judge has said that the instrument must point out the objects, the property and the way (359)in which it shall go.

Moseley v. Moseley, 87 N.C. 69, is in point in the present case. The deed was to "M. and his heirs" in consideration of one dollar, as well as the "natural affection" of the grantor to his daughter, wife of the said M.," and it was held absolute in the grantee and no trust in favor of the wife.

We hold that no trust can be declared in this instance, and that disposes of the case.

Error.