Ketner v. Rouzer

182 S.E.2d 21 (1971)

11 N.C. App. 483

Glenn E. KETNER v. Charles I. ROUZER, Trustee et al.

No. 7119SC173.

Court of Appeals of North Carolina.

June 23, 1971.

*24 Burke & Donaldson by George L. Burke, Jr., Salisbury, for plaintiff appellant.

Woodson, Hudson & Busby by Max Busby, Salisbury, for defendants appellees.

*25 PARKER, Judge.

Rule 56 of the Rules of Civil Procedure, G.S. 1A-1, Rule 56, relating to summary judgments, contains the following:

"RULE 56. Summary judgment. "(b) For defending party.A party against whom a claim, counterclaim, or crossclaim is asserted or a declaratory judgment is sought, may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. "(c) Motion and proceedings thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. * * *"

In this case defendants' motion for summary judgment was not served on plaintiff "at least 10 days before the time fixed for the hearing" as required by Rule 56(c). It was made without any prior notice during the course of the pretrial hearing at which the summary judgment dismissing plaintiff's action was rendered. Plaintiff's stipulation made at that hearing to the effect that his testimony and evidence "would be as set out in the Complaint" did not constitute a waiver of the requirement of Rule 56(c) that the motion for summary judgment "shall be served at least 10 days before the time fixed for the hearing." There is, we think, a sound reason for the mandatory form in which the 10-day requirement is expressed in the Rule.

In the summary judgment appealed from the trial judge determined, solely on the basis of the complaint and plaintiff's stipulation that his evidence would be "as set out in the complaint," that plaintiff's action is one to enforce an alleged parol contract for conveyance of land. As such, the trial judge found it unenforceable on two grounds: first, because there was no promise in writing as required by the State of Frauds, and second, because there was no consideration for the alleged contract except the offer to refrain from further bidding, which the court found to be an illegal consideration and against public policy. It is possible, however, that if plaintiff is given the opportunity, which proper notice of the motion for summary judgment would provide, he might by affidavit develop more fully the facts as to what actually occurred, and the facts so developed might support a different theory of the case. North Carolina has never adopted the Seventh Section of the English Statute of Frauds which requires all trusts in land to be manifested in writing. Bryan v. Kelly, 279 N.C. 123, 181 S.E.2d 438 (opinion filed 10 June 1971). "[I]t is uniformly held to be the law in this State that where one person buys land under a parol agreement to do so and to hold it for another until he repays the purchase money, the purchaser becomes a trustee for the party for whom he purchased the land, and equity will enforce such an agreement." Paul v. Neece, 244 N.C. 565, 94 S.E.2d 596; Hare v. Weil, 213 N.C. 484, 196 S.E. 869. Moreover, a parol trust "does not require a consideration to support it. If the declaration is made when or before the legal estate passes, it will be valid even if in favor of a mere volunteer." Hare v. Weil, supra. Evidence of the establishment of a parol trust is required to be clear, cogent, and convincing; a mere preponderance of the evidence is not sufficient. Bryant v. Kelly, supra.

Under G.S. § 1A-1, Rule 8(a), a pleading which sets forth a claim for relief shall contain (1) "[a] short and plain statement of the claim sufficiently particular to give the court and the parties notice *26 of the transactions, occurrences, or series of transactions or occurrences, intended to be proved showing that the pleader is entitled to relief, and (2) [a] demand for judgment for the relief to which he deems himself entitled." When the allegations of the complaint in this case are liberally construed, they give notice of transactions and occurrences which, when more fully developed at some evidentiary stage of this lawsuit, might support a finding that a valid parol trust had been established. The prayer for relief in plaintiff's complaint is consistent with this theory of his case; he expressly demanded judgment that defendant Rouzer be decreed a trustee to hold title for his benefit.

As to the second grounds on which the trial court dismissed plaintiff's action, while "[i]t is well established in this and other jurisdictions that a contract to stifle or to puff bidding at a public sale at auction is contra bonos mores and will not be enforced at the suit of either party," Martin v. Underhill, 265 N.C. 669, 144 S.E.2d 872, it is not certain that such was the nature of the transactions referred to in the complaint. It is possible, as plaintiff now contends on this appeal, that the effect of those transactions was to increase rather than to diminish bona fide competitive bidding for the property; that plaintiff was less interested in acquiring the whole of the tract being sold than in acquiring a small portion thereof adjoining lands he already owns for which he would pay a good price; and that his proposal to defendant Rouzer had the effect of increasing the latter's ability to bid to the extent of $20,000.00. Here, again, plaintiff is entitled to the opportunity, which compliance with the 10-day notice provision of Rule 56(c) would provide, to develop the facts more fully.

Because it was entered without prior notice of the motion as required by Rule 56(c), the judgment appealed from is

Reversed.

MALLARD, C. J., and VAUGHN, J., concur.