Grant v. Toatley

*465 Rodman, J. Defendant assigns as error the charge of the court, insisting that the court should have charged the jury if they found defendant intended that the beneficial owners of the property were to be Theodore R. Toatley or Theodore R. Toatley and Lovey Toatley, the jury should answer the issue submitted in the negative. Defendant does not contend that the name of Florence Toatley was not intentionally and deliberately put in the deed. He does not say that plaintiff is not the person named in the deed as Florence Toatley. He merely contends “that petitioner’s name was used merely for the transaction of business because respondent’s wife was insane.” The designation of plaintiff as “and wife,” cannot, on the facts here disclosed, affect plaintiff’s title. Freeman v. Rose, 192 N.C. 732, 135 S.E. 870; Hodgson v. Dorsey, 137 A.L.R. 456; 26 C.J.S., Deeds, sec. 99f. (p.355). There is no suggestion that plaintiff intended to make a gift of the land to defendant or to defendant and “his lawful wife.” If, as the jury has found, the plaintiff contributed at least half the purchase money, a resulting trust would have arisen in her favor if defendant had, without her knowledge and consent, procured the deed to be executed naming him only as the grantee. It is said in Creech v. Creech, 222 N.C. 656, 24 S.E. 2d 642: “The overwhelming weight of authority recognizes the general rule that in the absence of circumstances indicating a contrary intent, where the purchase price of property is paid with the money of one person and the title is taken in the name of another, for whom he is under no duty to provide, a trust in favor of the payor arises by operation of law and attaches to the subject of the purchase. Harris v. Harris, 178 N.C. 8, 100 S.E. 125; Avery v. Stewart, 136 N.C. 426, 48 S.E. 775; Summers v. Moore, 113 N.C. 394, 18 S.E. 712; 26 R.C.L. 1219, s. 64, note 1; 65 C.J., p. 382, s. 154(5), note 14. The presumption is regarded as so powerful that the payment of the purchase price under such circumstances draws the equitable title to the payor ‘as if by irresistible magnetic attraction.’ Ricks v. Wilson, 154 N.C. 282, 286, 70 S.E. 476. And a resulting trust in favor of the party paying the consideration will arise, although the conveyance is made to another with the knowledge and consent of the payor. Summers v. Moore, supra. Such a trust may be established by parol evidence.” Murchison v. Fogleman, 165 N.C. 397, 81 S.E. 627; Tyndall v. Tyndall, 186 N.C. 272,119 S.E. 354; Carlisle v. Carlisle, 225 N.C. 462, 35 S.E. 2d 418. The court charged the jury: “If two persons who are not married to each other purchase property jointly, they become tenants in common, nothing else appearing, and they would be joint owners one-half to each in their interest in the property. *466 “The Court further says that if two people are under the misapprehension of being married and purchase property as an estate by the entirety, and that later it develops that they are not legally or lawfully married, the estate becomes a tenancy in common rather than an estate by the entirety.” The defendant excepted to the foregoing portion of the charge and assigned it as error. The charge is correct. To create an estate by the entirety there must be “unity of person,” that is, the unity created by the marriage— husband and wife. Freeman v. Belfer, 173 N.C. 581, 92 S.E. 486; Johnson v. Leavitt, 188 N.C. 682, 125 S.E. 490; Bank v. Hall, 201 N.C. 787, 161 S.E. 484; Davis v. Bass, 188 N.C. 200, 124 S.E. 526; Carter v. Insurance Co., 242 N.C. 578, 89 S.E. 2d 122. When the unity of person, created by the marriage, is lacking, the estate by the entirety cannot exist. A conveyance to two persons who are not married creates, nothing else appearing, a tenancy in common. No error. Johnson, J., not sitting.