Gillespie v. . Gillespie

Adams, J. The defendants requested an instruction that the jury should answer the first issue in the affirmative if they believed the evidence of Carl Slagle and Fred Slagle. We think the instruction was properly refused. Whether a deed has been delivered in the legal sense is not dependent exclusively upon the question of its manual or physical transfer from the grantor to the grantee, but also upon the intent of the parties. Both the delivery of the instrument and the intention to deliver it are necessary to a transmutation of title. Upon the evidence adduced, the ultimate question of delivery was therefore properly submitted to the jury. Gaylord v. Gaylord, 150 N. C., 222; Fortune v. Hunt, 149 N. C., 358; Tarlton v. Griggs, 131 N. C., 216. We are of opinion, however, that there is error in the following instruction upon the fourth issue: “As to this issue, the burden is cast upon the plaintiffs as in the preceding issue to satisfy you by the greater weight of the evidence that the land described in the commissioner’s deed alluded to was purchased with the separate personal estate of their mother, Samantha.” In McNair v. Pope, 100 N. C., 404, it is said that undeij our former practice an equity could not be set up in opposition to a positive denial unless it had more substantial support than the testimony of a single witness, and that this rule, although it does not now prevail, affords an analogy in the quality of proof necessary to set up a denied equity. Hence it is held that where a deed is absolute in form, conveying upon its face the legal and equitable title, a trust therein must be established by proof which is clear, strong, and convincing. A mere preponderance of the evidence is not sufficient. Lefkowitz v. Silver, 182 N. C., 339; Williams v. Honeycutt, 176 N. C., 102; Boone v. Lee, 175 N. C., 383; McWhirter v. McWhirter, 155 N. C., 145; see note, 23 A. L. R., 1511. We should hesitate to say that there is no evidence to support the answer to the fourth issue; and where there is any evidence whether it is clear, cogent, and convincing, the jury, not the court, must determine. Cunningham v. Long, 186 N. C., 526. As to the first issue, we find no error; upon the fourth, the defendants are entitled to a new trial. Partial new trial.