Vestal v. . Sloan , 76 N.C. 127 ( 1877 )

This case involves the principles in respect to dealings between trustee and cestui que trust, which are decided and discussed in Lee v. Pearce,68 N.C. 76 and in Whitehead v. Hellen and Kornegay v. Spicer, at this term. A reference to the three cases named is all that is necessary. A statement of the facts of this case will show the application.

At the sale, plaintiff agreed to buy the land for Sloan and hold the title in trust to secure the amount of his bid, and also the amount due to his wards. The whole amount is fixed at $600.

This constituted the relation of trustee and cestui que trust. By a sale of a part of the land, the defendant paid to plaintiff $500, and he also paid $100. So that, he had redeemed his land except a balance for interest.

In this condition of things the plaintiff says to defendant:

"I am not bound in law to comply with my agreement because it is not in writing and I demand possession," whereupon the defendant agrees to give up his equity of redemption and to accept the bond of plaintiff to make title to his wife on payment of the sum of $500. Why this extra payment is required is not explained unless it can be referred to the fact that plaintiff handed up to the defendant his receipts as constable for claims to the amount of some $300 or $400.

Afterwards the plaintiff takes possession of another part of the land (Aaron Johnson tract) and finally concludes to "gobble up" the rest, but is induced to let the defendant have three months further time in which to redeem, provided at the end of that time, if the money was not paid, the defendant and his wife would quietly surrender the possession.

Can a more flagrant case of fraud and oppression be imagined?

The extension of time for turning out the defendant has no legal effect; the plaintiff had paid nothing for the defendant's right to redeem and the terms of this extension of time, as well as the refusal to accept the interest which was tendered and the manner of the refusal, all show that the plaintiff was oppressively exercising the power which he supposed he had over a necessitous man, who was in "his clutches."

There will be an order for an account to show the balance due on the original $600; to-wit: the interest at 6 per cent in arrear, after deducting the rents and profits of the Aaron Johnson tract while the plaintiff has been in possession, and a decree that upon payment of such balance, the plaintiff convey the land, excepting the part sold to Williams, to the defendant Sloan. If the rents and profits of the Aaron Johnson tract while the plaintiff has been in possession be in excess of the interest in arrear, the plaintiff will pay that amount to Sloan.

There will also be an order that Sloan return to the plaintiff (or account therefor) the constable's receipts, but this is no charge on the land. Mrs. Sloan will not be noticed in the decree. She is merely a volunteer, has paid nothing, and was simply the object of her husband's bounty, in all probability to put the land out of the reach of creditors.

No error.

PER CURIAM. Judgment affirmed.