Brice v. Moore

*367 ARNOLD, Judge. In ruling on a motion for summary judgment the court must look at the record in the most favorable light to the party opposing the motion. Peterson v. Winn-Dixie, 14 N.C. App. 29, 187 S.E. 2d 487 (1972). Respondent is the party opposing the motion here, and he contends in his first argument that summary judgment for petitioner was error because his assertion that he “had no intention to make a gift to the wife” was sufficient to rebut the presumption that the transfer was a gift to the wife. We disagree. Where a husband pays for land and has the deed made to himself and wife as tenants by the entirety, there is a presumption of an intent on the husband’s part to make a gift to the wife of an interest in the property which continues when the tenancy by the entirety is later destroyed. Honeycutt v. Bank, 242 N.C. 734, 89 S.E. 2d 598 (1955). To rebut the presumption of gift and establish a resulting trust the evidence must be clear, strong and convincing. Bowling v. Bowling, 252 N.C. 527, 114 S.E. 2d 228 (1960); Honeycutt v. Bank, supra. The burden is upon the husband to bring forward facts overcoming the inference of an intent to give to his wife. Shue v. Shue, 241 N.C. 65, 84 S.E. 2d 302 (1954); Bowling v. Bowling, supra. [See Bogert, Trusts and Trustees, Second Edition, § 459, Resulting Trust; examples of facts sufficient to rebut presumption of gift.] Respondent’s declaration by affivadit that he did not intend to make a gift to his wife was merely a reiteration of the same allegation contained in his answer. When the motion for summary judgment is supported, as required by Rule 56, the adverse party may not rest upon the mere allegations or denials of his pleadings, but he has to respond, by affidavits or as otherwise provided, by setting forth specific facts showing a genuine issue. Millsaps v. Contracting Co., 14 N.C. App. 321, 188 S.E. 2d 663 (1972). Respondent did not set forth specific facts showing a genuine issue for trial by declaring what his intention was with respect to the property. Moreover, his declarations of intent after the controversy arose would not be admissible in evidence. See Smith v. Smith, 249 N.C. 669, 107 S.E. 2d 530 (1959). In his second argument respondent contends that the North Carolina law with respect to purchase-money resulting trusts *368 is unconstitutional as applied to husbands and wives. He argues that there is no justifiable basis for the presumption that the land is a gift to the wife where the husband purchases land which is conveyed to husband and wife, since there is no presumption that the land is a gift to the husband if the wife purchases it and puts the title in both husband and wife. Respondent asserts the unconstitutionality of the presumption of gift to the wife, and argues that there should be no distinction between the man or woman with respect to such presumption. The record does not reflect that this constitutional argument was presented or considered by the trial court, and as a general rule this Court will not pass upon a constitutional question not raised and considered in the court from which the appeal was taken. Carpenter v. Carpenter, 25 N.C. App. 235, 212 S.E. 2d 911 (1975), cert. denied, 287 N.C. 465, 215 S.E. 2d 623 (1975). The judgment appealed from is Affirmed. Judges Parker and Hedrick concur.