Taylor v. . McMillan , 123 N.C. 390 ( 1898 )

The object of this action is to have a parol trust declared and enforced on land. It is admitted that the land described was sold by the sheriff under an execution against John McMillan, the father of plaintiffs and defendant, and was purchased by, and a deed made to the judgment creditor, John F. Greer, conveying 114 acres. It is proved that at the time of this sale and subsequent agreement between said McMillan and the defendant (James McMillan), the former was indebted to one Ray by judgment in the sum of $80, which was subsequently paid off and satisfied by John McMillan, who then demanded a deed from the defendant. It was also proved that, after the sheriff's sale John McMillan requested the defendant to take the (393) deed from Greer, saying "that Wash Ray had judgment against the land, and that if he took it back in his name, said Ray would have the land sold again, and that he could not pay Ray at that time, but he would pay him, and then he must have the deed to his land back, and James McMillan (defendant) said he would take it, and he should have it back."

John McMillan remained on the land till his death. Ray, Greer and other witnesses gave evidence tending to show the above facts.

When the plaintiffs rested their case the defendant moved judgment as of nonsuit on the ground that the plaintiff's testimony "disclosed that the land in question was conveyed to James McMillan for fraudulent purposes at the instance of John McMillan, to wit, to hinder, delay or defraud one Ray in collecting a debt against John McMillan." This motion was allowed and judgment of nonsuit was entered and the plaintiffs appealed. That judgment is erroneous.

A court of equity will not interfere with a contract, if it be illegal and against State policy, where the parties are in pari delicto. Grimes v.Hoit, 55 N.C. 271.

Where A paid the purchase money for land and had title made to B on a parol trust for A, it was held that such trust was not embraced in the statute of frauds. But where it appeared that the contract was made to defraud creditors, the court will not interfere with the legal title.Turner v. Eford, 58 N.C. 106.

Where both parties to an action have united to defraud others, the public, or the due administration of justice, or in a transaction contrabonos mores, the courts will not enforce it against either party. York v. Merritt, 77 N.C. 213.

(394) The defendant relies upon these and similar decisions, but, unfortunately for him, these decisions do not fit the facts in the present case. There is no allegation in the pleadings that the agreement between the defendant and his father was made to defraud any one, and the plaintiffs do not allege any mistake in the deed or deeds, and ask to have the deeds corrected. They insist that the deeds speak as intended by the parties, and they seek to impress a parol trust on the legal estate by the aid of the court of equity and to have the trust executed according to its terms and provisions.

The sheriff's sale put the land out of the creditor's reach and beyond the debtor's control; it had been applied to his creditors; and the agreement was made between the defendant and his father after the sale, and there is no suggestion of any fraudulent purpose on the ancestor's part, but it does appear that he was moved by the commendable purpose of rehabilitating himself and family at the old homestead. He paid Ray's debt, and the defendant has paid nothing for the land, and his position looks more in bad faith towards the old man than the evidence discloses against the old man. If the evidence be true, the defendant's conduct is inexcusable, and it appeals in vain to the conscience of this Court.

The plaintiffs rely on Link v. Link, 90 N.C. 235, which is precisely in point, and so conclusive that we think a reference to it and the cases cited therein, and to the subsequent case of Hughes v. Pritchard,122 N.C. 59, is sufficient. In Link's case, supra, the parol agreement was made before and in anticipation of the sheriff's sale, and the agreement was enforced by this Court.

Error.

Cited: McNeill v. R. R., 135 N.C. 734.

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