Davis v. Kerr.

Connor, J., after stating tbe case: We have not noted plaintiff’s several exceptions to Ilis Honor’s ruling in regard to the admissibility of evidence, because tbe questions raised by them are presented upon tbe demurrer to tbe entire evidence and motion for judgment of nonsuit. Tbe question pressed and argued in this court upon, tbe demurrer, is whether tbe entire evidence, if true, was of that character required to engraft a trust upon tbe legal title to land. Tbe plaintiff contends that proof of declarations of tbe bolder of tbe title, made antecedent to, or at tbe time of, tbe delivery of tbe deed, is insufficient to establish a parol trust, unless evidenced by facts and circumstances de hors tbe deed. That, in this record tbe only evidence of tbe alleged trust is tbe unsupported testimony of defendant Kerr that Bates promised to take tbe title and bold for bis benefit, conveying to him when be paid tbe amount of tbe bid with interest. That this testimony is denied by Bates. That, in this condition of the *17 case the question is not one of intensity, wbicb it is conceded would be for the jury, but of character which must be decided by the court as matter of law. It must be conceded that expressions have been used by this court which, but for later decisions, would seem to sustain the proposition of the plaintiff. In Cobb v. Edwards, 117 N. C., 247, it is said: “The court may declare that there is not evidence of the kind required by law to entitle the plaintiff to the relief sought.” It is difficult to conceive of a case in which there would be an absence of some act, or conduct of the parties connected with the language used, throwing light upon and either sustaining or contradicting the allegation of the declaration of a parol trust. The question has recently undergone so thorough an investigation, involving a review of our own and cases from other courts, that we do not deem it necessary to review our conclusions or the reasons upon which they are based in the opinions of Mr. Justice Walker in Avery v. Stewart, 136 N. C., 426, and in Sykes v. Boone, 132 N. C., 199 (95 Am. St. Rep., 619). Quoting the language of Mr. Bispham, he says: “When a party acquires property by conveyance, or devise, secured to himself under assurances that he will transfer the property to, or hold and appropriate it for, the use and benefit of another, a trust for the use and benefit of such other person is charged upon the property, not by reason merely of the oral promise, but because of the fact that, by means of such promise he had induced the transfer of the property to himself.” Bispham Eq., section 218. The principle is illustrated and enforced in a large number of'cases in our Reports, many of which are cited and commented upon in the opinions in the cases named. It must be conceded that language is sometimes used by the court when discussing the cases, both questions of law and fact, which are difficult to reconcile, in regard to the kind and intensity of proof required. In regard to the first question, it is not necessary to discuss the law in this appeal, because following the princi- *18 pies laid down in Avery v. Stewart, supra, we are of the opdnion that there is found in the testimony in this record evidence of such facts and circumstances as were sufficient to take the case to the jury. The relation of the parties, that of mortgagor and mortgagee, the purchase by defendant Kerr at the sale — Bates not being present and Kerr making the only bid, the fact that Kerr remained in possession, that when Mr. Gibson wished to buy a portion of the land, Kerr made the trade, fixed the price and that Bates made the deed under Kerr’s directions, etc., much of which is uncontra-dicted and some of which is supported by Mr. Gibson. These facts are consistent with the existence of some arrangement between Bates and Kerr. It would, without some such explanation, have been a remarkable and inexcusable breach of duty on the part of Bates, representing the bank, to have permitted the land to be sold in his absence and without any representative, to see that it brought the amount of the debt, or, at least, a fair price. It is equally difficult to understand why he permitted the defendant to remain in possession from April, 1890, until the failure of the bank, June, 1893, unless some agreement existed between Kerr and himself. Again, except upon the same theory, how is Kerr’s interest in and conduct in regard to the' sale to Gibson explained ? Defendant, it seems, without question alone paid the taxes until the plaintiff came in as' receiver and continued to do so, although the receiver also paid them. It is true that there is evidence, much of which is uncontradicted, of language and conduct on the part of defendant inconsistent with the allegation that he had paid for the land. The only purpose for which we are at liberty to discuss the testimony is to ascertain whether, admitting the proposition of plaintiff in regard to the kind of evidence required, such is found. Having passed that point and seen that the defendant was entitled to go to the jury, we may not trespass upon their domain. What weight the jury will give to the evidence, how *19 it will be affected in tbeir opinion by tbe testimony introduced by plaintiff and by defendant’s conduct, are questions solely for them. This court has held in Lehew v. Hewitt, 130 N. C., 23, that in those cases where the evidence is required to be clear, cogent and convincing, the court may not decide whether it is so, but must submit the evidence to the jury. In that respect we refer to the opinion in Avery v. Stewart, supra, as containing our views. We are therefore of the opinion that His Honor correctly submitted the evidence to the jury and, in the absence of any exceptions, we assume that he explained to them the law and the rules by which they were to be guided in arriving at a verdict. The question of payment was one of fact, and we find no exception to His Honor’s ruling in that regard. The original debt was due to the bank, Bates was, in the entire transaction, acting for the corporation. Plaintiff excepts to the language of defendants’ counsel in regard to the plaintiff’s witness, Bates, and His Honor’s course in that respect. Certainly the language is not to be commended in a judicial investigation. It was not calculated to aid the jury or enlighten the court. Denunciation is not argument, either in the court house or elsewhere. There may be a wide divergence of opinion -as to the proposition that “this is a sentimental age” and whether we use “mild expressions” instead of “plain strong language.” Certainly the counsel could not have supposed that he was under the han of sentimentalism, in describing his estimate of the witness. It is exceedingly difficult, as this court has often said, to draw the line between proper comment .and abuse of the privilege conferred upon counsel. This privilege is conferred upon counsel as a sacred trust, to be used only in defense of truth and right. It does not pertain to his personal, but to his official relation as an officer of the court. Any use of it for other than the high purpose for which- it is con *20 ferred is an abuse. As we have said in Horner's case, adopting the language of a judge of this court, “It is difficult to lay down the line, further than to say that it must, ordinarily, be left to the discretion of the judge who tries the cause,” etc. While we do not sustain the plaintiff’s exception, because we are not persuaded that any substantial injustice was done, we do not concur in the suggestion made in de-defendant’s brief, “that a witness does not come under the same rule that applies to plaintiff or defendant.” If there be any difference, which is not conceded, a witness should be more carefully guarded by the court from assaults of counsel. The parties come voluntarily, while a witness is brought in by the process of the court. Both are entitled, as are the court and jury, to have the testimony discussed. It is the office of counsel to comment upon, analyze and discuss their testimony, and in a proper, respectful manner call attention to their demeanor, relation to the parties and the cause. In discharging this duty it is due the court, the jury, the witness and to counsel himself, but above all to the cause of truth and justice, whose minister he is, to speak temperately and with a due regard to the sacred trust reposed in, and the responsibility imposed upon, .him. Upon an examination of the entire record, we find nd reversible error of the law. In view of the pleadings and testimony we think that the cost should be equally divided. It is so ordered: Affirmed. Walker, J., did not sit on the hearing of this appeal.