Paul v. Neece

94 S.E.2d 596 (1956)

244 N.C. 565

N. F. PAUL v. C. H. NEECE.

No. 35.

Supreme Court of North Carolina.

October 10, 1956.

*598 Harry B. Brown, Elizabeth City, for defendant-appellant.

Norman & Rodman, Plymouth, for plaintiff-appellee.

WINBORNE, Chief Justice.

While the record shows that defendant, the appellant, assigned as error the denial of his motion, made when plaintiff first rested his case, and renewed at the close of all the evidence, for judgment as of nonsuit, these assignments of error are not set out in appellant's brief nor is reason or argument stated or authority cited in support thereof. Hence under Rule 28 of Rules of Practice in the Supreme Court, 221 N.C. 544, at page 562, the exceptions are taken to be abandoned. Indeed, the exceptions presented are untenable.

For it 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. Hare v. Weil, 213 N.C. 484, 196 S.E. 869, citing Cohn v. Chapman, 62 N.C. 92; Cobb v. Edwards, 117 N.C. 244, 23 S.E. 241; Owens v. Williams, 130 N.C. 165, 41 S.E. 93; Avery v. Stewart, 136 N.C. 426, 49 S.E. 775, 68 L.R.A. 776; Allen v. Gooding, 173 N.C. 93, 91 S.E. 694; Peterson v. Taylor, 203 N.C. 673, 166 S.E. 800.

In Owens v. Williams, supra [130 N.C. 165, 41 S.E. 94], it is stated that "Wherever land is conveyed to one party under an agreement that he is to hold it for another, he becomes a trustee, whether this agreement is made at the time of conveyance or is made before, and the land is conveyed in pursuance of said agreement."

And in Hare v. Weil, supra [213 N.C. 484, 196 S.E. 871], this Court said that "A parol trust does not require a consideration to support it. If the declaration is made when or before the legal estate passes, *599 it will be valid even if in favor of a mere volunteer", citing cases.

Applying this principle to case in hand the pleadings raise the issue first stated in the record, and the evidence offered upon trial in Superior Court is adequate to justify and require the submission of the issue to the jury.

Appellant assigns as error Numbers 7 and 8 based upon exceptions 6 and 7 respectively,portions of the charge in respect to the first issue. But in his brief filed here only a portion of that covered by exception 6 is quoted. From this it is contended that there is a conflict of instruction on the quantum of proof required. However, the two portions of the charge appear consecutively and when so read the court clearly stated to the jury that the establishment of a parol trust is required to be by evidence which is clear, strong and convincingthat a "mere preponderance" of the evidence is not sufficient to establish a parol trust. Indeed, in the specific portion of the charge covered by that portion so quoted, as above stated, no rule as to quantum of proof is stated. But in the following paragraphs the rule is stated repeatedly and correctly. Hence this Court holds that prejudicial error therein is not made to appear.

Appellant also assigns as error this portion of the charge: "The burden of proof as to the second issue is on the plaintiff to satisfy you by the greater weight of the evidence as to what was the amount of the purchase price paid by the defendant to the railroad for the seven lots in question." Assignment of error Number 11, Exception 10.

It is contended by appellant that the quantum of proof on the second issue is by evidence which is clear, strong and convincing,that the amount of the purchase price to be paid by plaintiff to defendant was an integral part of the parol trust. Appellee contends, and this Court holds properly so, that the first issue determined the question as to whether or not there was a parol trustan integral part of which was the agreement by plaintiff to repay the purchase price which defendant paid to the railroad for the lots. The burden as to this comes within the quantum "clear, cogent and convincing." But the second issue only elicits the amount to be paid, and would seem to come within the general rulethat in civil matters the burden of proof is usually carried by preponderance of the evidence, or by its greater weight.

Appellant further excepts to the action of the trial judge in allowing plaintiff to amend his complaint by adding to Section 3 thereof the following: "And that the defendant would thereafter make deed to plaintiff covering said lands," and by striking out the word "was" in line 17 of Section 3 of the complaint and substituting therefor the words "had been" to which assignments of error 1 and 2 based on exceptions 1 and 2 relate.

It is contended by appellant that a careful reading of the original section of the complaint does not contain any alleged declaration of trust,that the third section shows that the alleged agreement occurred "when the transfer or conveyance was accepted from Norfolk Southern Railway Company," etc., and that the latter part of that section originally speaks of a then agreement that defendant would take title and reconvcy, etc.; whereas the permitted amendment nuts the agreement in the past tense.

In this connection it is noted that the amendments were allowed by the court in the exercise of her discretion, from which no appeal may be bad. Nevertheless, the complaint alleges, particularly in paragraph 2, the agreement between plaintiff and defendant when plaintiff first consulted defendant as hereinabove set forth.

Appellant further presents a group of assignments of error, Number 9 based on Exception 8, Numbers 13 and 14 on Exceptions 12 and 13, respectively, and *600 assignments 16 and 17 on Exceptions 15 and 16.

In this connection it is noted that Exception Number 8 is to this portion of the charge: "Now with reference to this first issue, members of the jury, if the plaintiff has satisfied you by evidence which is clear, strong and convincing that before the Norfolk Southern Railway conveyed the seven lots described in the complaint to the defendant Neece that the defendant Neece agreed with the plaintiff Paul that he would hold the title to those lots for the use and benefit of Paul and would thereafter convey the lots to Paul, upon his paying to the defendant the purchase price which the defendant Neece had paid the railway for those lots, you would answer the first issue yes. If the plaintiff failed to so satisfy you, you would answer it no."

This is a clear statement of applicable principle of law.

Exceptions 12 and 13 are to the failure of the court to declare, explain and apply the law arising on the evidence, as required by G.S. § 1-180, (1) "to the effect that the amount of the purchase price and its payment or tender, and the keeping of the tender good, was a part of the alleged parol trust, to be proved by the plaintiff by evidence clear, cogent and convincing before the jury could answer the first issue Yes," and (2) "particularly as to the evidence of plaintiff in attempting to vary the alleged trust by having had deeds prepared not only to himself, but also to his son for a part of the lands the subject matter of the alleged parol trust."

These exceptions are contrary to the theory upon which the case was tried in Superior Court. Defendant was contending there that he made no such contract as plaintiff alleged, and as to which he testified,and was not entitled to prevail on the theory of parol trust. Defendant may not now be heard to change the theory of the trial.

It is a well-settled principle in this State that the theory upon which the case is tried in the courts below must prevail in considering the appeal and in interpreting a record and in determining the validity of exceptions. Simons v. Lebrun, 219 N.C. 42, 12 S.E.2d 644, and cases cited. Also Hinson v. Shugart, 224 N.C. 207, 29 S.E.2d 694.

All authorities cited by defendant in connection with assignments of error have been examined and found to be distinguishable, and all assignments of error have been given due consideration and are found to be without merit. Hence in the judgment from which appeal is taken, the Court finds.

No error.

JOHNSON, J., not. sitting.