Cunningham v. . Long

Adams, J. The object of the action'is to establish a parol trust. The tracts of land described in the deeds were sold by the trustees on 4 December, 1909, and purchased by J. A. Long, under whom the defendants claim title. The plaintiffs allege that on or about 1 November, 1909, and at other times subsequent thereto, and prior to the sale, the purchaser agreed with J. S. Cunningham that he would buy the land in question at the trustees' sale and hold it for said Cunningham, and convey it back to him upon repayment of the purchase-money and interest; that said Cunningham agreed to repay this amount; and that by virtue of the agreement the purchaser accepted, and the defendants now hold the legal title in trust for the plaintiffs. The defendants deny that such agreement was made, and insist that the purchaser acquired the legal title under absolute conveyances, having done nothing which was inconsistent with complete ownership, and that they have succeeded to his interest in the property conveyed. The alleged agreement was in parol. It was not essential that it be in writing. At common law it was not necessary that a trust should be declared in any particular way; consequently it was provided by the seventh section of the statute of frauds that all declarations or crea *531 tions of trusts or confidences in any lands, tenements or hereditaments should be manifested and proved by some writing signed by the party enabled by law to declare such trusts, or by his last will in writing. But this section has not been adopted in North Carolina, and, as there is no other statute which requires the declaration of a trust to be in writing, the matter stands as at common law. Therefore such declaration, as Chief Justice Pearson said in Shelton v. Shelton, 58 N. C., 292, may “be made by deed or by writing, not under seal, or by mere word of mouth.” Foy v. Foy, 3 N. C., 131; Strong v. Glasgow, 6 N. C., 290; Cook v. Redman, 37 N. C., 623; Riggs v. Swann, 59 N. C., 119; Ferguson v. Haas, 64 N. C., 773; Shields v. Whitaker, 82 N. C., 516; Pittman v. Pittman, 107 N. C., 159; Sykes v. Boone, 132 N. C., 200; Gaylord v. Gaylord, 150 N. C., 227; Jones v. Jones, 164 N. C., 321; McFarland v. Harrington, 178 N. C., 189. While not directly assailing this principle, the defendants say that the plaintiffs have undertaken to engraft a trust upon deeds purporting to convey a fee; that.such trust must be established by evidence de hors the deeds; that the alleged declarations of the purchaser are not supported by such evidence, and that the nonsuit was properly granted. In Clement v. Clement, 54 N. C., 184, the object of the bill was to convert the defendant into a trustee for the plaintiffs on the ground that the defendant’s intestate had purchased a slave named George for and with the money of Lawrence Clement, under whom they claimed, and had taken the conveyance to himself; and the Court said that the intention must be established, not merely by proof of declarations, but, in addition, by proof of facts and circumstances de hors the deed inconsistent with the idea of an absolute purchase by the party for himself. See, also, Hinton v. Pritchard, 107 N. C., 128; Hemphill v. Hemphill, 99 N. C., 436; Briggs v. Morris, 54 N. C., 193; Brown v. Carson, 45 N. C., 272. In Williams v. Honeycutt, 176 N. C., 103, it was held that the declarations of a purchaser made after the sale and transmission of the legal title were competent to prove the previous agreement; and in Ferguson v. Haas, supra, it is suggested that it would be hard to conceive of a case which could be founded on words only, without some corroborating acts and circumstances. As we understand it, the evidence in the instant case discloses several' circumstances tending to corroborate the alleged declarations of the purchaser. Among other circumstances are these: J. S. Cunningham was in financial straits; he had executed several deeds of trust to secure his creditors; he had found it difficult to raise money; the purchaser of the land was wealthy; he was Cunningham’s friend; the land sold by the trustees embraced 2,043 acres, worth from $70,000 to $80,000; it was bought at the sale for $16,625; Cunningham remained on the *532 land until December, 1910; the purchaser did not care for the land; and it was not to be sold and no timber was to be cut except for keeping up the farm. Of course, as to the merits of the evidence we have nothing to say; but when we consider it in the light most favorable to the plaintiffs, we regard it of sufficient probative force to be considered and passed upon by the jury. The evidence, it is true, must be clear, cogent, and convincing, but whether it meets this requirement is a matter for the jury and not for the court. Cobb v. Edwards, 117 N. C., 245; Lehew v. Hewitt, 130 N. C., 22; Avery v. Stewart, 136 N. C., 426; Cuthbertson v. Morgan, 149 N. C., 72; Hendren v. Hendren, 153 N. C., 505; Taylor v. Wahab, 154 N. C., 220; Boone v. Lee, 175 N. C., 383; Lefkowitz v. Silver, 182 N. C., 339. The defendants further contend that in any event it was not incumbent upon them or their ancestor to reconvey the land until the purchase price was paid, and that neither payment nor tender had been made. In the letter written the defendants by J. S. Cunningham is the following language: “I now offer to repay you, in such proportions as you may agree amongst yourselves, the said purchase price and interest without delay, and I demand that you shall upon such payment recon-vey the said lands to me.” It is admitted that J. A. Long answered this letter on behalf of all the defendants, and declined the offer and refused to reeonvey the land. Under these circumstances a more formal tender of the purchase-money would have been idle, for obviously it would have accomplished nothing. A tender is not necessary when it is reasonably certain that it will be refused. Phelps v. Davenport, 151 N. C., 22; Gallimore v. Grubb, 156 N. C., 575; Gaylord v. McGoy, 161 N. C., 686; Headman v. Comrs., 177 N. C., 263. .The defendants interpose the additional objection that J. S. Cunningham made no assertion of his claim until about five years after the death of J. A. Long, the purchaser, and that it would be inequitable for this reason to enforce the alleged trust; and in support of this position they rely on the doctrine stated In re Dupree’s Will, 163 N. C., 256, and in Coxe v. Carson, 169 N. C., 132. In the first of these eases it is said that after a will had been regularly proved in common form the right to file a caveat prior to 1907 (Public Laws, ch. 862) was forfeited by acquiescence or unreasonable delay, and while the time required at common law for the operation of the principle was not definitely fixed, twenty years was the period generally prevailing. And in Goxe’s case it was held that without reference to the statute of limitations, those who had delayed for more than thirty years to assert their claim to land said to have been held upon a parol trust would be deemed to have lost their rights. Neither of these cases is necessarily decisive of the question here presented. In the instant case there is evidence tending *533 to show an express trust with an indefinite period for the redemption of the land; and in the record as it now appears we find nothing which concludes the plaintiffs on the ground of laches or unreasonable delay. The statute of limitations was not pleaded. The judgment of his Honor dismissing the action as in case of non-suit is reversed to'the end that the controversy be determined as provided by law. Reversed.