Tarkington v. Tarkington

263 S.E.2d 294 (1980)

Eloise TARKINGTON v. Zebulon Vance TARKINGTON.

No. 7915SC618.

Court of Appeals of North Carolina.

March 4, 1980.

*296 R. Chase Raiford, Burlington, for plaintiff-appellant.

William L. Durham, Burlington, for defendant-appellee.

VAUGHN, Judge.

Plaintiff excepts to several of the trial court's findings of fact. An examination of the record reveals the findings are all supported by competent evidence though in some instances there is also competent evidence to the contrary. The findings of the trial court are conclusive on appeal if there is evidence to support them. This is true even though the evidence might sustain findings to the contrary. Williams v. Insurance Co., 288 N.C. 338, 218 S.E.2d 368 (1975); Knutton v. Cofield, 273 N.C. 355, 160 S.E.2d 29 (1968).

The issue thus becomes whether these findings support the trial court's conclusion that a purchase money resulting trust did not arise on these facts. Plaintiff contends there is a purchase money resulting trust under the law of this State.

If the husband furnishes the entire consideration and causes title to be taken in his name and his wife's name by the entirety, there is a presumption that he intended a gift to his wife of an entirety interest in the property. Honeycutt v. Bank, 242 N.C. 734, 89 S.E.2d 598 (1955); *297 Brice v. Moore, 30 N.C.App. 365, 226 S.E.2d 882 (1976). A purchase money resulting trust is not presumed. This is consistent with the general rule on the creation of a purchase money resulting trust. Generally, once a person proves he supplied the consideration for realty with title taken by another, a resulting trust is presumed. Tire Co. v. Lester, 190 N.C. 411, 130 S.E. 45 (1925). However, if the person supplying the consideration is under a duty to support the one taking the title, a gift and not a trust is presumed. This is the case where a parent supplies consideration and title is taken in a child's name or the husband supplies consideration and title is taken in the wife's name.

On the other hand, if the wife furnishes the consideration for the purchase of the property, there is a presumption in this State that she did not make a gift to her husband of an entirety interest in the property but rather that she had title conveyed in this form with the intent that her husband hold such interest in trust for her. Overby v. Overby, 272 N.C. 636, 158 S.E.2d 799 (1968); Bullman v. Edney, 232 N.C. 465, 61 S.E.2d 338 (1950); Dail v. Heath, 206 N.C. 453, 174 S.E. 318 (1934); Wise v. Raynor, 200 N.C. 567, 157 S.E. 853 (1931); Tyndall v. Tyndall, 186 N.C. 272, 119 S.E. 354 (1923); Deese v. Deese, 176 N.C. 527, 97 S.E. 475 (1918); McWhirter v. McWhirter, 155 N.C. 145, 71 S.E. 59 (1911). These older cases assumed the domination of a wife by her husband. This assumption really no longer holds in contemporary marriages and has already been stricken from our law in other areas. A wife is no longer entitled to the presumption that when she commits a crime in the presence of her husband, she was compelled to so act by her husband. State v. Smith, 33 N.C.App. 511, 235 S.E.2d 860, cert. den., 293 N.C. 364, 237 S.E.2d 851 (1977), cert. den., 434 U.S. 1076, 98 S. Ct. 1267, 55 L. Ed. 2d 782 (1978); State v. Robinson, 15 N.C.App. 362, 190 S.E.2d 270 (1972). Privy examinations of the wife in transfers of realty are no longer required. G.S. 52-8; 1977 N.C. Sess. Laws ch. 375, § 1. The presumption that a resulting trust arises when the wife supplies consideration and the husband takes title harkens back to a time when the legal existence of a woman was suspended to nothingness during the time of a marriage and a time when a woman could be beaten by her husband without possibility of punishment for him as long as his battery was not with excessive violence or did not result in serious injury. The presumption in its time was a valiant effort to overcome the lowly position of the married woman in the law. We question the validity of such a presumption in contemporary marriages. Today, wives are not dominated by their husbands, at least not through force and by right of law, and wives are as likely to make gifts to their husbands as their husbands are to them. Substantial authority in other jurisdictions holds that where the wife pays the purchase price for the property conveyed to her husband or to both of them as tenants by the entirety, a gift is presumed. Peterson v. Massey, 155 Neb. 829, 53 N.W.2d 912 (1952); Emery v. Emery, 122 Mont. 201, 200 P.2d 251 (1948); Hogan v. Hogan, 286 Mass. 524, 190 N.E. 715 (1934); Tiffany, Law of Real Property § 272 (1939). It is not necessary for us to attempt to change this longstanding rule in the case before us.

The presumption that a trust results where the wife supplies consideration for the purchase of property where title is in the husband or in both as tenants by the entirety is rebuttable. A resulting trust is presumed once the wife proves she provided the consideration for the property held as tenants by the entirety. She must prove she provided the consideration at or before title was taken in the property. However, the husband, the alleged trustee, may rebut the presumption by evidence that a trust was not intended and that the money used for consideration was a gift, or perhaps even payment of a debt to the husband or a loan to the husband. That the wife provided the consideration must be proven by clear, strong and convincing evidence. A mere preponderance of the evidence is not sufficient. McWhirter v. McWhirter, 155 N.C. 145, 71 S.E. 59 (1911); see also Martin v. Underhill, 265 N.C. 669, 144 S.E.2d 872 *298 (1965); Hodges v. Hodges, 256 N.C. 536, 124 S.E.2d 524 (1962).

In this case, the evidence does not show that plaintiff furnished the entire consideration for the purchase. The purchase price for the realty was $36,000.00 plus $200.00 in closing costs. The consideration furnished was around $19,800.00 from plaintiff's personal savings account with the balance secured by a note and deed of trust signed by both plaintiff and defendant. Defendant was thus liable for a portion of the consideration furnished to pay for the realty. By plaintiff's own admission, defendant paid some of the subsequent monthly payments on the note and deed of trust. Moreover, plaintiff's own evidence rebuts the presumption that she intended her husband to hold his entirety interest in trust and indicates a donative intent. Her testimony was to the effect that at the time the property was purchased, it was understood that the property would be deeded to both of them. It was not against her wishes that the property was deeded to both of them. She assumed that each of them would own a one-half undivided interest in the property. The question would not have arisen if the marriage had not failed.

The trial court correctly ruled that the parties held the property as tenants by the entirety and that no purchase money trust resulted in favor of plaintiff.

Affirmed.

HEDRICK and CLARK, JJ., concur.