Cousins v. Wall, 56 N.C. 43, 3 Jones Eq. 43 (1856)

Dec. 1856 · Supreme Court of North Carolina

56 N.C. 43, 3 Jones Eq. 43

RICHARD COUSINS against ROBERT WALL.

Where the vendor of a tract of land,^vho is bound, under a written covenant, to make title to A on the payment of the purchase-money, makes the title to B, who advances the money for the accommodation of A, and takes the conveyance under a parol contract, that he is to hold the laud as security for the loan, A is entitled, on the re-payment of the money, to a conveyance, and tliis contract is not affected by the statute of frauds.

Cause removed from the Court of Equity of Beaufort county.

The plaintiff had agreed to purchase from W. B. Rodman, at the price of $200, the tract of land in question, together with a quantity of lumber, worth about $100, for which he gave his note for $200, due on the 1st of January, 1855, with interest from the date, also another note for $100, due on the 1st of January, 1856, with interest, in like manner, from the date, (which was sometime in. 1853). At the time of the execution of these notes, plaintiff took a bond from Mr. Rod-man to make him a fee simple title on the payment of the said notes, and at the same time he took possession of the land and put some small improvements on it.

About the 1st of January, 1855, when the first note became due, the defendant, at the instance and request of the plaintiff, paid not only the no.te for $200 then due, but also the note for $100, and thereupon the land was conveyed by Rod-man to the defendant, and the two notes, as well as the covenant for title, mutually surrendered and destroyed. The plaintiff, who had married a daughter of the defendant, continued to reside on the land, with his family, until about the month of June following, when, upon the occurrence of a rupturé between the plaintiff and his wife, which resulted in a separation, the defendant, for the first time, denied the trust on which he had taken the title for the land, and brought suit for possession, to September Term, 1855, of Beaufort County Court.

The plaintiff avers that the money paid by defendant to Rodman was a loan to him (plaintiff) and that the conveyance from Rodman to him was understood, and expressly agreed, to be but a security for the said sum of money, and that ac-* cording to the same agreement, whenever the plaintiff repaid that sum, with interest, the titlejras to be made to him (plaintiff). The plaintiff alleges that he had tendered the said sum, with interest, to the defendant, which he has refused to receive. The prayer of the bill is for an injunction, which was issued in vacation, and which awaits .the result of the hearing ; also, for a conveyance of the land to him according to the agreement.

The defendant, in his answer, denies that there was any trust, and says he purchased without any snch understanding or agreement as that alleged by the plaintiff, but says he intended the land as a residence for his son-in-law and daughter, and after making the purchase, and taking the title, he did gratuitously, and without any consideration, tell the plaintiff that he might have the land if he would p>ay him back the money he had paid, with interest; and he relies upon the statute of frauds as a bar to the plaintiff’s recovery.

There were replication to the answer, commissions and proofs.

The cause being set down for hearing, was sent to this Court by consent.

Rodman, for plaintiff.

Donnell, for defendant.

Battle, J.

The material facts of this case are very similar to those in Cloninger v. Summit, decided at the last August Term in Morgan ton, and reported in 2 Jones’ Equity Eeports 513, and the principles announced in that case must govern the present. The testimony satisfies us, beyond a doubt, that the defendant advanced his money, and took a title to himself for the lot in question, upon a promise made to the plaintiff, that he would convey it to him whenever he should repay him the purchase-money, with the interest accrued thereon. Besides the circumstances of the possession retained by the plaintiff, and the improvements made thereon by him, we have the positive testimony of Mr. Selby, that such was the agreement between the parties. It is true, that this testimony was parol, and the defendant relies on the statute of frauds to prevent its effect. This objection is fully ánswered by the case of Cloninger v. Summit above alluded to. Changing the names, what is said in that case is directly applicable to to this: “ By force of the contract, the plaintiff, in view of this Court, was the owner of the land. Bodman held the legal title, in trust, to secure the payment of the purchase-money, and then in trust for the plaintiff. Had Bodman sold the land to a third person, with notice, the purchaser would have been a trustee for the plaintiff. The substance of the arrangement was, that the defendant should be substituted in the place of Bodman as a trustee for the plaintiff.” By paying his money and taking the legal title to himself, the defendant held the legal title, in trust, to secure the repayment of the purchase-money, and then in trust for the plaintiff. The defendant never contracted to sell or convey the land, or any interest therein, to plaintiff ;• for, at the time of agreement, he had no title or interest in the land, and it was only by the force of the agreement, that he was permitted to take the legal title, and by the same act he took it in trust for the plaintiff. It is manifest that the statute of frauds does not apply.

The plaintiff, upon the repayment to the defendant of all money advanced by him for the lot of land in question, with interest thereon, as to which there must be an account, is entitled to a conveyance of the said lot, and he may have a decree accordingly.

Per Cukiam. Decree accordingly.