Bullman v. EdneyAnnotate this Case
61 S.E.2d 338 (1950)
232 N.C. 465
BULLMAN v. EDNEY.
Supreme Court of North Carolina.
October 11, 1950.
*339 Cecil C. Jackson, Asheville, for plaintiff appellant.
Geo. F. Meadows, Asheville, for defendant appellee.
Ownership of personal property, when challenged, is always a mixed question of law and fact. If the facts are not in dispute it becomes a question of law for the court. But if they be in dispute, the question is left to the jury under proper instructions by the court upon the law. 42 Am.Jur. 218, Personal property, 41. Applying these rules to the evidence offered on the trial of present action, in Superior Court as shown in the record on this appeal, the facts being in dispute, the question of ownership of the automobile involved should have been submitted to the jury under proper instruction by the court upon the applicable principles of law.
In this connection it must be borne in mind that plaintiff alleges that she and her husband purchased the automobile in question from defendant for the consideration of $800.00, of which she paid $500.00 in cash and her husband agreed to pay the balance. If this allegation be true, as plaintiff's evidence tends to show, plaintiff and her husband became co-owners of, or *340 tenants in common in the ownership of, the automobile, nothing else appearing, in the proportion the amount each paid, or agreed to pay, bears to the whole purchase price. And while "one who owns an undivided interest in a chattel may sell such interest and thereby render the buyer a tenant in common with the other co-owners, * * * one co-tenant cannot convey any greater title or interest than he has, except where the conduct of the co-tenant estops him from asserting title against the innocent buyer". See 46 Am.Jur. 217, Sales, 22.
And it is a well settled principle that where, on the purchase of property, the conveyance of the legal estate is taken in the name of one person, but the purchase money is paid by another at the same time or previously, and as a part of one transaction, a trust results in favor of him who supplies the purchase money. Beam v. Bridgers, 108 N.C. 276, 13 S.E. 112, 23 Am.St.Rep. 59.
This principle has been frequently applied where land is purchased with funds arising from the separate estate of the wife. Lyon v. Aikn, 78 N.C. 258; Cunningham v. Bell, 83 N.C. 328; Hackett v. Shuford, 86 N.C. 144; Beam v. Bridgers, supra. See also Annotation 113 A.L.R. 339; 54 Am.Jur. 158, Trusts, 203; 28 Am. Jur. 730, Husband and Wife, 104. Compare Bass v. Bass, 229 N.C. 171, 48 S.E.2d 48.
In Lyon v. Aikn, supra, the opinion is epitomized by this headnote: "Where land is purchased by a husband with his wife's money * * * and title is taken to the husband alone, a resulting trust is created in favor of the wife, and a purchaser from the husband with notice stands affected by the same trust".
The principle of resulting trusts applies alike to transactions relating to both real and personal property. 54 Am.Jur. 158, Trusts, 203.
Moreover, if a tenancy in common in the automobile was created, and existed between plaintiff and her husband, and defendant "stands in the shoes" of the husband, and the automobile be available therefor, there is provision by statute, G.S. § 46-44, as amended by Chapter 719, Section 2 of 1949 Session Laws of North Carolina, for a sale of it for partition among the parties interested. Ordinarily a tenant in common in personalty is entitled to partition of the property. Chadwick v. Blades, 210 N.C. 609, 188 S.E. 198. But since the matters to which the stipulation of the parties relate are not set out in the record, what would be the rights of the parties in respect of partition of the property, if plaintiff be a tenant in common therein, is not determinable on the record as it now appears. However, if plaintiff prevail in establishing an interest in the automobile, and if, as stipulated by the parties, the automobile be not available for sale for partition, and the rights of the parties be not otherwise provided for in the "bond posted" by defendant, the evidence contained in the record tends to show facts which would support a claim for conversion.
In this connection, the principle is clearly stated in Waller v. Bowling, 108 N.C. 289, 12 S.E. 990, 992, 12 L.R.A. 261, in opinion by Avery, J., in this manner: "A tenant in common of a chattel cannot maintain an action of, or in the nature of, trover against his co-tenant upon the ground merely that his demand for possession of the common property has been refused by the latter, unless he can show that the co-tenant has subsequently consumed it or placed it beyond recovery by means of legal process. (Citing cases.) But where the tenant in possession of personal chattels withholds the common property from his co-tenant, or wrests it from him, and exercises a dominion over it either in direct denial of or inconsistent with the rights of the latter, an action will lie for conversion", citing cases. See also Doyle v. Bush, 171 N.C. 10, 86 S.E. 165; Barham v. Perry, 205 N.C. 428, 171 S.E. 614.
In the light of these principles, it is appropriate that plaintiff amend her complaint to conform to the evidence.
The judgment below is