Wright v. . Cain , 93 N.C. 296 ( 1885 )

The exception of the appellant cannot be sustained.

The pleadings did not in any aspect of them raise any issue of fact in respect to the value of improvements placed on the land by the defendant; nor was there any issue of fact so raised as to whether or not the parol contract alleged in the complaint was affected with champerty. The defendant, in his answer, simply insisted that the contract as stated in the complaint was so affected and void.

Only issues of facts raised by the pleadings must be submitted to the jury, and therefore the court properly refused to submit those tendered by the appellant. McElwee v. Blackwell, 82 N.C. 345; Miller v. Miller,89 N.C. 209; Overcash v. Kitchie, ibid., 384.

It seems that the fourth issued, to wit, "Is the plaintiffs' claim to relief barred by the statute of limitations?" was withdrawn from the jury, and no instructions were given them as to that, for it is said in the case settled for this Court on appeal that the "counsel for both sides say it is a question for the court." It could not be a question exclusively for the court unless the facts raising the question were alleged in the complaint. So we must take it that the defendant meant to insist that, taking the facts to be as alleged in the complaint, the action was barred by the statute.

The allegations in the complaint are not very definite in some respects, but it is alleged that the defendant, in pursuance of the judgment in his favor in the action brought by him to recover the land, took possession of it in the fall of 1878, and after that the feme plaintiffs made demand upon him that he execute the trust in question. This action was begun on 23 August, 1880, manifestly less than three (301) years next after the demand was made, so that the statute did not bar in this aspect of the case. If the trust was an express one, the statute would certainly only run from the date of the demand.

But on the argument the counsel for the appellant insisted that the appellees alleged in the complaint, at most, only an implied or constructive trust, and sought relief on the ground of fraud, and that the facts stated showed that they had knowledge of the alleged fraudulent transaction, ever after 1872, and more than three years next before the beginning of this action, and therefore they were barred by the statute.

We cannot accept this view of the complaint. We think that it plainly alleges an express parol trust, an express agreement between the feme plaintiffs and the defendant, whereby the latter agreed in the contingency specified, that he would, upon being paid reasonable compensation for his services in recovering the land, hold the title thereto in trust for thefeme plaintiffs and reconvey the same to them. The parol agreement providing the express trust is distinctly alleged, although there are also facts and circumstances alleged in support of the alleged purpose of the defendant to circumvent and defraud the feme plaintiffs. As an express trust is alleged, it is obvious that the statute did not bar the action of the plaintiffs.

It might well be questioned whether or not the parol agreement in question could, in any case or any view of it, be treated as tainted with champerty; but, as alleged, it is very clear it is not fatally so as to the appellees, because the feme plaintiffs were not in pari delicto — the parties were not equally culpable with the defendant; indeed, it is alleged that the feme plaintiffs were wholly ignorant of any illegal purpose — that they were poor, and ignorant of their legal rights; that the defendant was their kinsman, in whom they greatly confided; that he was a man of prominence, had been a justice of the peace and for many years a member of the county court; that he was a business man; (302) that they intimate with and confided greatly in his knowledge and experience; that he advised and encouraged them to make the agreement, and they did so mainly at his suggestion. Accepting the facts as alleged, the feme plaintiffs were poor, ignorant of business matters, confided greatly in the defendant, and acted upon his advice; he took a fraudulent and oppressive advantage of them, obtaining the same under the circumstances indicated above. A strong case of fraud indeed is alleged against the defendant.

Where parties are in pari delicto, and one obtains advantage over the other, a court of equity will not grant relief; but it is otherwise where they are not equally in fault, as where the parties seeking relief were ignorant of their rights and the illegal nature of the transaction in question, were poor and dependent, and the advantage taken was oppressive, manifestly unjust, and iniquitous. In such cases the court will grant relief, notwithstanding the illegality of the transaction in question.Pinckston v. Brown, 56 N.C. 494; Story's Eq. Jur., sec. 300; 3 Pomeroy's Eq. Jur., sec. 942.

We discover no error in the record, and the judgment must be affirmed.

No error. Affirmed.

Cited: Sparks v. Sparks, 94 N.C. 533; Porter v. R. R. 97 N.C. 70;Fortescue v. Crawford, 105 N.C. 31; McAdoo v. R. R., ibid, 151; Maxwellv. Barringer, 110 N.C. 83; Trucker v. Satterthwaite, 120 N.C. 121;Norton v. McDevit, 122 N.C. 759; Dickens v. Perkins, 134 N.C. 223;Edwards v. Goldsboro, 141 N.C. 72; Sykes v. Thompson, 160 N.C. 351;Pierce v. Cobb, 161 N.C. 302; Geddie v. Williams, 189 N.C. 339; Wise v.Raynor, 200 N.C. 571; Green v. Casualty Co., 203 N.C. 773.