Roberson v. Pruden , 242 N.C. 632 ( 1955 )

89 S.E.2d 250 (1955) 242 N.C. 632

D. M. ROBERSON and wife, Ethel G. Roberson,
v.
P. D. PRUDEN and wife, Lillian L. Pruden.

No. 27.

Supreme Court of North Carolina.

September 28, 1955.

Norman & Rodman, Plymouth, W. D. Boone, Winton, for defendant appellants.

Peel & Peel, Williamston, Bailey & Bailey, Plymouth, for plaintiff appellees.

DEVIN, Justice.

The defendants assign as error the ruling of the trial judge in denying their motion for judgment of nonsuit, but after a careful examination of all the evidence shown by the record before us, we reach the conclusion that the motion was properly denied.

True, some portion of plaintiffs' evidence might justify the inference that the agreement entered into between the parties before the sale of the land was merely a parol agreement to purchase coupled with an option to repurchase, as was held in Gunter v. Gunter, 230 N.C. 662, 55 S.E.2d 81. However when the entire evidence is considered in the light most favorable for the plaintiffs, as required by the rule on a motion for nonsuit, we think the evidence sufficient to make a case for the jury on the question whether the defendant P. D. Pruden agreed before the sale to buy the land at the sale and to take title thereto in trust for the plaintiffs as alleged in the complaint.

The finding by the jury on this question, in the light of all the evidence under the charge of the court, was sufficient to bring this case within the category of an express trust arising by virtue of the agreement between the parties and enforceable in equity for the purpose of carrying out the intention of the parties, when it is made to appear from the circumstances that the grantee was not intended to take beneficially. Avery v. Stewart, 136 N.C. 426, 48 S.E. 775, 68 L.R.A. 776; Taylor v. Addington, 222 N.C. 393, 23 S.E.2d 318; Carlisle v. Carlisle, 225 N.C. 462, 35 S.E.2d 418; Bowen v. Darden, 241 N.C. 11, 84 S.E.2d 289.

"``It is not now an open question that when a party agrees before the sale to purchase property about to be sold under an execution against a party, and to give such party the benefit of the purchase, the agreement is binding, and will be enforced.'" Sandfoss v. Jones, 35 Cal. 481, quoted by Walker, J., in Avery v. Stewart [136 N.C. 426, 48 S.E. 779], supra.

It is well settled that a parol trust in favor of the grantor cannot be engrafted upon a deed conveying title in fee, unless otherwise indicated in the deed. "However", said Denny, J., in Carlisle v. Carlisle [225 N.C. 462, 35 S.E.2d 420], supra, "since the seventh section of the English Statute of Frauds, which forbids the creation of a parol trust in land, has never been enacted in this jurisdiction, parol trusts may be enforced where the grantee takes title to property under an express agreement to hold the property for the benefit of another." A number of authorities in support are cited.

The defendants in an amendment to their answer alleged that if there were an agreement between the plaintiffs and defendants before the sale whereby the defendants were to buy and hold the land in trust for the plaintiffs, this was done with intent wrongfully to defeat the Federal tax lien. Since the tax lien of the United States was subsequent to the lien of the deed of trust, under the statute the United States would have one year from date of sale within which to redeem. Tit. 28 U.S. C.A. § 2410; Roberson v. Boone, N.C., 89 S.E.2d 158. It was contended that plaintiffs did not come into a court of equity with clean hands. However an issue addressed to this allegation was submitted to the jury and answered in favor of the plaintiffs. The defendants' exception to a portion of the judge's charge on this issue is without merit.

The other exceptions noted by defendants during the trial and brought forward in their assignments of error have been considered but we find no error which would justify upsetting the verdict and judgment below.

No error.

WINBORNE and HIGGINS, JJ., took no part in the consideration or decision of this case.