Citation Numbers: 44 S.E. 652, 132 N.C. 891
Judges: DOUGLAS, J.
Filed Date: 6/10/1903
Status: Precedential
Modified Date: 1/13/2023
CLARK, C. J., and MONTGOMERY, J., dissenting.
This case was before us at February Term, 1901, and is reported in
The following is the only issue submitted: "Was purchase money paid for the land in controversy furnished equally by Elizabeth A. Ray from her separate estate and by H. M. Ray, to procure a home for said H. M. Ray and wife? It was answered in the affirmative. This issue was objected to as insufficient by the defendant, who tendered seven different issues. We think that the issue as submitted was sufficient in form and substance to present every material fact necessary to (893) a determination of this case. When this is true, no exception thereto can be sustained. Patterson v. Mills,
1. Only issues of fact raised by the pleadings must be submitted to the jury.
2. The verdict, whether in response to one or many issues, must establish facts sufficient to enable the court to proceed to judgment.
3. Of the issues raised by the pleadings, the judge who tries the case may, in his discretion, submit one or many, provided that neither of the parties to the action is denied the opportunity to present to the jury any view of the law arising out of the evidence, through the medium of pertinent instructions on some issue passed upon.
This is in entire consonance with the rule laid down in Tucker v.Satterthwaite,
Nor does it conflict with what is said in Cox v. R. R.,
The motion to dismiss was properly refused, as there was evidence tending to prove the plaintiff's contentions.
We see no objection to the evidence offered by the plaintiffs to show the purpose for which the $600 was furnished by the feme plaintiff and her accompanying directions. It was competent evidence tending to prove a material fact.
We find no error either in the charge or refusal to charge. Among other prayers the defendant requested the court to charge in substance that the evidence offered by the plaintiffs was not clear, cogent and convincing. This prayer was properly refused under the authority of Lehew v. Hewitt,
We come now to the legal effect of the verdict. The jury have found upon competent evidence and under proper instructions that the purchase money for the land in question was furnished equally by the plaintiffs, who are husband and wife, for the purpose of procuring a home for them.
When the case was here before it was held that with or without an agreement, if the wife's money went into the purchase of the land, a resulting trust was created whereby the husband became a trustee for his wife to the extent of her interest. Under the facts as now found, the wife had a right to demand a conveyance jointly to herself and her husband; and she would now have a right to have the deed reformed so as to give full force and effect to her equities. This is the practical (895) result of the judgment in this case, certainly as between the parties. The effect will be to create an estate in entireties, in which the parties will hold, in the ancient language of the law, per toutet non per my. This estate is fully recognized by our law, and has not been impaired by section 6 of Article X of the Constitution. Whether it arises directly from the marital relation or from a presumption of intention, *Page 629
is immaterial, so long as it exists. In Motley v. Whitemore,
Among the numerous cases that might be cited, the following will serve to exemplify the principle:Todd v. Zachary,
It is unnecessary to discuss the nature and effect of a resulting trust, as that point was decided, as far as it affects this case, in our former opinion; but a further discussion of the principle can be found in Gorrellv. Alspaugh,
While the action in this case is neither for the reconveyance of land nor for the reformation of the deed, yet we think it comes within the essential principle of Stamper v. Stamper,
The judgment of the court below is
Affirmed.
Timmons v. . Westmoreland , 72 N.C. 587 ( 1875 )
Kirkpatrick v. . Holmes , 108 N.C. 206 ( 1891 )
Denmark v. . R. R. , 107 N.C. 185 ( 1890 )
Spruill v. . Manufacturing Co. , 130 N.C. 42 ( 1902 )
Patterson v. . Mills , 121 N.C. 258 ( 1897 )
Simonton v. . Cornelius , 98 N.C. 433 ( 1887 )
Gorrell v. . Alspaugh , 120 N.C. 362 ( 1897 )
Long v. . Barnes , 87 N.C. 329 ( 1882 )
Ray v. . Long , 128 N.C. 90 ( 1901 )
Stamper v. . Stamper , 121 N.C. 251 ( 1897 )
Pretzfelder v. . Ins. Co. , 123 N.C. 164 ( 1898 )
Harrison v. . Ray , 108 N.C. 215 ( 1891 )
Lehew v. . Hewett , 130 N.C. 22 ( 1902 )
Tucker v. . Satterthwaite , 120 N.C. 118 ( 1897 )
Cox v. . R. R. , 126 N.C. 103 ( 1900 )
Jones v. . Potter , 89 N.C. 220 ( 1883 )
Gray v. . Bailey , 117 N.C. 439 ( 1895 )
Cullom v. Kearns , 8 F.2d 437 ( 1925 )
Ades v. Caplin , 132 Md. 66 ( 1918 )
Moore v. . Trust Co. , 178 N.C. 118 ( 1919 )
Isley v. . Sellars , 153 N.C. 374 ( 1910 )
Spence v. . Pottery Co. , 185 N.C. 218 ( 1923 )
Carter v. . Oxendine , 193 N.C. 478 ( 1927 )
McKinnon v. . Caulk , 167 N.C. 411 ( 1914 )
Lance v. . Rumbough , 150 N.C. 19 ( 1908 )
Stalcup v. . Stalcup , 137 N.C. 305 ( 1904 )