Anderson v. Harrington, 163 N.C. 140 (1913)

Oct. 1, 1913 · Supreme Court of North Carolina

163 N.C. 140

GEORGE F. ANDERSON v. W. H. HARRINGTON et al.

(Filed 1 October, 1913.)

1. Trusts and Trustees — Parol Trusts — Partnership.

The plaintiff and defendant agreed, by parol, that they would purchase a tract of land, the latter to advance the purchase price, and take the deed to himself and the former to repay it by cutting and selling the timber standing on the land, and that'the land was then to be sold and the proceeds divided between them. This action is brought to sell the land and for a division of the proceeds under the terms of the agreement: Sold, the action was to establish a parol trust in plaintiff’s favor, and not for specific performance or to settle a partnership.

2. Trusts and Trustees — Parol Trusts — Statute of Frauds.

The provisions of the statute of frauds, that a sale of lands be in writing and signed' by the party charged, etc., does not apply to tbe declaration of a trust in lands, in tbe absence of statutory requirement; hence, a parol trust in lands to stand seized to the use of another is enforcible in North Carolina.

Appeal by defendant from 0. II. Allen, J., at May Term, 1913, of CbaveN.

Civil action. Tbis issue was submitted to tbe jury by tbe court:

“Did tbe plaintiff and defendant contract and agree as alleged in section 1 of tbe complaint, and was tbe deed made to Harring*ton in accordance witb said agreement?- Answer; Yes.”

Section 1 of tbe complaint is as follows:

That prior to 11 April, 1911, tbe plaintiff bad bargained for tbe purchase of tbe tract of land herein referred to, at tbe price of $450, and applied to tbe defendant W. LL Harrington for tbe money, whereupon it was agreed between tbe plaintiff and W. H. Harrington that plaintiff should buy tbe property and draw on tbe defendant W. H. Harrington for tbe purchase money, and then tbe plaintiff was to proceed witb tbe cutting of tbe standing timber on tbe tract and sell tbe same and turn over tbe net proceeds to tbe defendant W. H. Harrington, until such payments bad amounted to tbe purchase price, and that they would then sell tbe land and divide tbe proceeds then between them, share and share alike, or otherwise they would be equal owners in tbe land after tbe said W. H. Harrington bad been paid tbe purchase money.

It is admitted in tbe answer that tbe deed to tbe land and timber was executed to defendant by A. J. 'Waters and wife on 11 April, 1911.

It is further admitted “that plaintiff made a draft on defendant W. H. Harrington for tbe said $450 witb which to pay tbe grantor in tbe said deed, which draft was paid and honored by tbe said W. H. Harrington.”

Upon these admissions and tbe finding of tbe jury, bis Honor adjudged “that W. H. Harrington be first paid tbe balance of tbe $450 purchase money, and tbe balance be equally divided between tbe plaintiff and defendant; that costs, including tbis term, be taxed against tbe defendant W. H. Harrington; that for purpose of division D. L. Ward and ~W- D. Mclver be aj>-pointed commissioners to make sale of tbe land and timber according to law.”

Tbe defendant excepted and appealed.

W. D. Mclver for the plaintiff.

D. L. Ward for the defendant.

BkowN, J.

In tbe view we take of tbis case, it is unnecessary to consider eacb of tbe numerous assignments of error.

In tbe briefs tbe action appears to be treated as one to settle a copartnership, whereas it is in reality an action to set up and establish a parol trust in land.

Tbe defendant requested bis Honor to charge tbe jury:

“There is no evidence in tbis case to sustain a recovery of an interest in land. In order to recover land, there must be some memorandum in. writing signed by tbe party to be bound thereby.”

Tbis is not an action for specific performance of a contract in tbe sale of land, but one to establish a trust. One of tbe four methods of creating a trust is by contract, based upon valuable consideration, to stand seized to tbe use of or in trust for another. Wood v. Cherry, 73 N. C., 115.

It is so well settled in tbis State that tbe statute of frauds, requiring a memorandum in writing in respect to tbe sale of land to be signed by tbe party charged, does not apply to tbe declaration of trusts, that it is a waste of time'to discuss tbe question at tbis late day. Riggs v. Swan, 59 N. C., 118.

At common law it was not necessary that a trust be declared in any particular mode. In England tbe statute requires that declarations of trust be evidenced ■ and proved by some writing, but in tbis State there is no such requirement, and therefore tbe matter stands as at common law. Riggs v. Swan, 59 N. C., 118; Shelton v. Shelton, 58 N. C., 292.

In view of tbis well settled principle, it has been held that where one person buys land under an agreement to do so and to bold it for another until be repays tbe purchase money, tbe purchaser becomes a trustee for tbe party for whom be purchases tbe land.

Cobb v. Edwards, 117 N. C., 244; Holden v. Strickland, 116 N. C., 185; Owens v. Williams, 130 N. C., 165.

Tbe jury have found tbe facts set out in section 1 of tbe complaint to be true. Those facts are sufficient to create a trust in tbe defendant for plaintiff’s benefit, and it necessarily follows tbat tbe judgment pronounced by bis Honor is correct.

Tbe motion to nonsuit was properly denied, as there is abun-. dant evidence introduced by tbe plaintiff tending to establish tbe trust alleged in the complaint.

No error.