Fleming v. . Strohecker

Montgomery, J.: G. "W. Kerr, now deceased, formerly a defendant in this action, agreed in writing with one Thomas to purchase the tract of land which is the subject of this action. Kerr, failing to comply with his agreement, the executor of Thomas and his heirs-at-law commenced proceedings against him in the Superior Court of Iredell county at its Pall term, 1870, to have the land sold for the payment of the purchase money due under the agreement. Judgment was bad against the defendant, G. W. Kerr, for the amount due, to be paid on a day certain, and upon failure of payment the land to be sold by the cleric of the court, as commissioner, at public auction after legal advertisement. The sale was advertised under the decree’to be *372 made on the 21st of January, 1871, when R. R. White, the father of the plaintiffs, became the last and highest bidder at the price .of $215. R. R. White died before the proceedings were concluded. At February term, 1886, of Iredell Superior Court, the clerk who was appointed to make sale of the land made report to the court that he had collected the purchase money and was ready to make title, but that the purchaser was dead, leaving the plaintiffs his heirs-at-law. Whereupon, an order of court was made that the commissioners make title to the land to the heirs-at-law of R. R. White, the deceased purchaser, the plaintiffs in this action. The defendant G. W. Kerr, personally appeared in open court and assented to the decree and order. The deed was duly and properly executed under the order. The present action was commenced against Kerr and the other defendants, who claim under him, by recent conveyances. The defendant Kerr had died since the commencement of this suit and after he had conveyed to the other defendant T. H. Strohecker the tract of land in dispute, and his heirs-at-law have been made parties defendant in this action. The defendant Kerr denied the right of the plaintiffs to recover, and set up title in the other defendant, his grantee, by virtue of his deed to him, and alleging his right to convey to be founded on a parol trust concerning the land, to the effect that the father of the plaintiffs, at the request of Kerr, bought the land under the judicial sale of 1870 and agreed to hold it in trust for him (Kerr) and to convey it to him when he should pay him (R. R. White) the purchase money. The defendant Kerr in his answer set up also a second parol trust which he alleges was entered into between him and all of the plaintiffs at the time of the rendition of the judgment and decree of 1886, to the effect that the plaintiffs agreed with him that if he would consent to the judgment they would *373 bold the land in trust for him, and on the payment by Mm to them of the purchase money which their father paid for the land, $215 less $89, which he alleged he had paid to the plaintiff’s ancestor under his parol trust with him, they would convey the land to him, Kerr. The other defendants adopted this defence of defendant Kerr. His Honor allowed testimony to be offered going to show both of these alleged trusts. Proof of the first ought not to'have been allowed to set it up; although competent testimony (not Kerr’s) might have been admitted concerning it to corroborate testimony going to show the second trust. The defendants are clearly estopped by the judgment and decree of 1886 for the plaintiffs in that action, and the defendant Kerr, knew that the parol trust with the ancestor, which he seeks to set up here, was directly in qiiestion in that proceeding, and he ought to have set it up then and there. Ashe did not, he is concluded by the record made against him. Jones v. Coffey, 97 N. C., 347. The main and principal and only question before the court, when the decree of 1886 was made, was, to whom should the title of this land be made, the purchaser being-dead? The defendant came into open court and unequivocally gave his express consent that a decree might be made ordering the commissioner to make the deed to the plaintiffs, in this action, absolutely. This is an agreement entered into openly in the presence of the court by the defendant and the plaintiffs in that action and the plaintiffs in this being the privies of the plaintiffs in that, whatever is entered of record, the court acting and pronouncing judgment thereon, neither the defendant nor his privies can afterwards deny. The record and the facts given in the record must be true as to all concerned. Williams v. Clouse, 91 N. C., 322; Johnson v. Pate, 90 N. C., 334. Whatever error therefore the defendants may allege *374 as to the ruling of his Honor in reference to the first alleged parol trust, is harmless, for it ought not to have been submitted to the jury as an issue. We have examined the record carefully as to the testimony introduced for the purpose of proving the parol trust alleged to have been made with all the plaintiffs at the time of the decree, made in 1886. Kerr’s testimony (by deposition) is as follows: “I concluded to pay their claim and let my debt go at that time. I did not know whether I could bring that in or not. I wanted a deed to the land and Mrs. Fleming was the administratrix of the estate and said she had no deed and could not give one without she had a deed. I told her I would help her get a deed and to give me one. She said she and Mr. Fleming would arrange to give me a deed. They claimed the balance of the purchase money and I thought the deed was to be made to her as administratrix and not to the heirs. I went there with the money and offered it to her and Mr. Fleming and they would not take it. In a short time after that they got that deed and they promised to give me a deed and never did it. Agreeable to what was said I tendered the money after they got the deed, according to contract. I did not see all of the White heirs, but that was the agreement I had with Mr. and Mrs. Fleming. In fact I did not know them all — the White heirs.” There is not a particle of testimony given by any other witness tending to show that any of the plaintiffs, except Fleming and his wife, had any part in or knew any thing of the alleged trust, and his Honor would have been authorized to instruct the jury that if they believed the testimony they should find for their verdict that the plaintiff Pinckney A. White was entitled to recover one-third of the land, and Nannie E. Eagle, Annie D. Bailey and W. A. White to recover one-third between them. The *375 judgment of the court below is therefore modified to this extent, and affirmed as to the rights of the said Pinckney A.White, Nannie E. Eagle, Annie D. Bailey and W. A. White. As to the alleged trust with the plaintiffs at the time of the judgment and decree, made in 1886, so far as the same may affect the interest of Fleming and his wife in the land, the matter should have been submitted to the jury on the proof offered, with a proper application of the legal principles involved, which his Honor did not do in the instructions which he gave. He committed no error, however, in refusing the instructions which the defendants requested, as they w’ere framed. The issues submitted were not the best, but, owing to the latitude his Honor allowed in the examination of witnesses, the whole case was developed and no harm came to the parties through the issues submitted. The legal title to the land having been admitted to be in the plaintiffs, it would bave been better to have submitted proper issues on the alleged trust set up by the defendants at the time of the judgment in 1886. The judgment as herein modified is affirmed, but for the error, as to the failure of his Honor to properly instruct the jury, concerning the alleged trust set up by the defendants, so far as it affected the interest of Fleming and his wife in the land, there must be a new trial as between Fleming and his wife and the defendants. New Trial.