Wilson v. . Jones

IIoke, J. There were facts in evidence to the effect that in March, 1913, defendant Booker Jones bought the land in question at public sale under judicial decree and had the title conveyed to his wife and code-fendant Leah; that he borrowed the money to pay for the land, the debt and accrued interest amounting-to $1,320, and he and his wife joined in the execution of a deed of trust to secure the same; that default having been made, the land was, after due advertisement, sold under the provision contained in the deed and bid off by one J. W. King at $1,725; that King, not being able to secure the money, transferred his bid, with assent and procurement of said Jones, to the present plaintiffs. Deed was executed not long after the sale to present plaintiffs, who paid the price bid at the foreclosure sale, and in 1916 instituted the present suit. The evidence on the part of the defendants tended to show that'said King bid off the land and the bid was transferred to the present plaintiffs and title acquired under an agreement to hold the land in trust for .said Booker Jones, and allow him to redeem the same at a stated price, and, on the part of plaintiffs, that there was no agreement to.buy the land and hold in trust for Jones, but that the land was bid off by King -for his own benefit; bid was transferred, money paid and title taken, and that afterwards and as an independent agreement, King and plaintiffs had given Jones an option on the land at the price bid, he to pay $200 at the end of the first year, and on such payment he was to have another year within which to buy the land, etc.; that plaintiffs had bought the land and taken the title without notice of an agreement between King and Jones, but that in recognition of King’s agreement plaintiffs had given defendant a written option to the effect, as stated, ■that said defendant had never made any payment pursuant to the option nor any payment whatever on the land under either agreement, and having failed and refused to pay plaintiff, brought suit for possession of the property. ' On these opposing positions, it is fully recognized in this jurisdiction .that if, at or before the sale, - there was an agreement between these *207 parties creating a trust in favor pi tbe defendants, the same could be made available to them in the present action. Williams v. Hunnicutt, at the present term; Gaylord v. Gaylord, 150 N. C., 222; Sykes v. Boone, 132 N. C., 199. In Gaylord case, supra, the principle is stated as follows: “The seventh section of the English statute of frauds, forbidding The creation of parol trusts or confidences of lands, tenements or hereditaments, unless manifested and proved by some writing,’ not being in force with us, and no statute of equivalent import having been enacted, these parol trusts have a recognized place in our jurisprudence and have been sanctioned and upheld in numerous and well-considered decisions,” citing Avery v. Stewart, 136 N. C., 436; Sykes v. Boone, 132 N. C., 199; Shelton v. Shelton, 58 N. C., 292; Strong v. Glasgow, 6 N. C., 289. And in Sykes v. Boone it was held, among other things, “That when a person takes a deed for property with an agreement that he will, upon the payment of a certain sum, convey the same to a third person a parol trust is created in favor of the latter.” On the other hand, if, as plaintiffs contend, this land was purchased and title acquired without such agreement existent at the time, and afterwards the purchaser gave to the original owners the privilege or option to buy on compliance with specified terms, and no compliance whatever made by such owners within the time, in that event defendants, the original owners, never acquired or held any interest in the property itself, and tlieir claim is no valid defense in a suit by the purchaser for the possession of the property. Interpreting and allowing significance to the verdict in reference to the testimony and his Honor’s charge, the permissible and proper rule under our procedure (Reynolds v. Express Co., 172 N. C., 487), it is clearly established that the transaction between these parties created not a trust but an option; that there had been no compliance with the terms made or attempted by defendants, or either of them, and we are of opinion that the judgment on the verdict, that plaintiffs are the owners and entitled to possession of the property, must be affirmed. We are not inadvertent to the fact that Leah Jones, the original holder of the naked legal title, has filed an answer claiming the surplus realized at the foreclosure sale over and above the amount borrowed for the purchase money, or that J. W. King, who has apparently received his, also had been made party defendant. On the facts in evidence, such a claim is not necessary or properly relevant to the determinative issues involved in this action. It does not appear to have been considered or passed upon in the court below, nor are there any exceptions noted that present it for decision on the present appeal. The judgment, however, will be entered without prejudice to any claim she may have for such *208 surplus asserted in an independent action for the same. Baugert v. Blades, 117 N. C., 221. There is no error, and the judgment below is affirmed. No error.