Faust v. . Faust

CoNNOR, J., after stating the case: We concur with his Honor in the opinion that the testimony, taken to be true, does not establish any declaration of trust in favor of the plaintiff. This is true for several reasons. Passing the *386 question of its competency to establish a trust by parol declarations made subsequent to the execution of the deed, we do not think that the language used by George A. Eaust shows a purpose to declare a trust attaching to the legal title. He simply conveyed the land to the children of John 0. Eaust in consideration of the promise of the son to pay his sister, the plaintiff, $500. We do-not perceive any intention to make the children grantees trustees for the purpose of securing the performance of the promise made by their father. The declarations, when competent for that purpose, must clearly indicate an intention to attach to the legal title, at the time it passes to the grantee, a trust, the terms of which should be sufficiently definite to enable the Court to enforce its execution. • To this effect are all of the cases. Smiley v. Pearce, 98 N. C., 185; Pittman v. Pittman, 107 N. C., 159; Sykes v. Boone, 132 N. C., 199; Avery v. Stewart, 136 N. C., 426. In these cases the authorities are so fully and exhaustively discussed and the doctrine of parol trusts, in all of its phases, so clearly defined, that we would be but repeating what is there so well said to do more than refer to them. As the judgment of nonsuit is based upon the conclusion that in no aspect of the allegations and proof is the plaintiff entitled to any relief, we have deemed it our duty to examine the entire record, to the end that we might say whether any cause of action is alleged or proven entitling the plaintiff to any relief. While, for the reasons stated, we do not think she is entitled to have the specific relief demanded or the issue answered in her favor-, we are of the opinion that, upon her allegations and the testimony of the witness Saunders, she is entitled to judgment against the defendant John C. Eaust for the sum of $500 unless her action is barred by the statute of limitations. The testimony shows that the deed was made to the children of John *387 C. Faust, without any consideration moving from them, but in consideration of the promise of their father to pay to the plaintiff the sum of $500. While the recital of a consideration paid by the grantee in a deed of conveyance is evidence of its truth, it is not conclusive. “It was formerly held, although there was much conflict of opinion, that the clause stating the consideration in a deed or other instrument under seal must be held conclusive on the parties like other parts of the instruments and was not open to contradiction or explanation, but the more modern decisions settle the rule that although the consideration expressed in a sealed instrument is prima facie the sum paid, or to be paid, it may still- be shown by the parties that the real consideration is different from-that expressed in the written instrument. Accordingly, it is held, by an uncounted multitude of authorities, that the true consideration of a deed of conveyance may always be inquired into and shown by parol evidence.” 16 Cyc., 653. The course of the decisions of this Court is set forth with care and ability by Shepherd, J., in Barbee, v. Barbee, 108 N. C., 581; Kendrick v. Insurance Co., 124 N. C., 315; Deaver v. Deaver, 137 N. C., 240. It was, therefore, competent for the plaintiff to show that, in truth, the sum of $500 recited in the deed was not paid to George A. Eaust, but was to be-paid to the plaintiff. It was held in Sprague v. Bond, 108 N. C., 382, that while such an agreement constitutes no trust nor passes any interest in the land itself, it entitles the party who is to - receive the purchase-money to sire for the amount. Formerly the'suit would have been in the name of the grantor to the use of the party who was to receive the purchase-money, but under our Code system the real party in interest may sue on a contract made for his benefit. If the fact be found as testified by the witness Saunders, we can see no valid reason why the plaintiff *388 lias not a right of action in personam against her brother for the amount which he promised his father to pay in consideration of his children receiving the title to the land. It is immaterial that the deed was made to the children instead of directly to him. The conveyance of the land to them was a sufficient consideration to 'support his promise to his father. The conveyance by the children of the same land to the defendant John C. Eaust within a short time strongly tends to support the plaintiff’s view of the transaction. Is the plaintiff barred by the statute of limitations? The transaction being subsequent to the Act of 1899, removing the disability from married women, her coverture does not prevent the operation of the statute. Her ignorance of her rights does not protect them. There is no evidence of fraud or mistake. When did her right to sue accrue ? Defendant said that he was to ■pa.y the amount as he made it out of the land. It may be that while her right to the money arose out of the contract that her right to demand it was postponed until her brother made it out of the land — until, either by cultivation or rents, he realized the amount. Again, it may be suggested that her right to sue accrued when she became a party to the contract by demanding the amount. The question is not free from difficulty, and we forbear expressing any opinion in the present state of the record. We are of the opinion, as the motion to nonsuit admitted the truth of the testimony, with inferences most favorable to plaintiff, it developed, against defendant John 0. Eaust, a cause of action for the sum of $500. Other interesting questions, which may arise if she obtains a judgment, suggest themselves. We simply order a new trial to the end that the parties may proceed as they may be advised. New Trial.