McFarland v. . Harrison

Walicer, J., after stating tbe facts as above: Tbe only question of importance in this case is whether tbe defendant, Mrs. Harrington, at the time tbe judgment was drawn, and before or at tbe time tbe legal title passed to her, promised and agreed that she would accept tbe title upon tbe trust to bold it for her brother (as to tbe half interest in tbe land) until be could pay tbe stipulated amount of money to fully reimburse Mr. Mclver, and then convey tbe half interest to tbe plaintiff. There was evidence to support tbe plaintiff’s allegation of a trust, such as is above set forth, and it was fairly and correctly submitted to tbe jury. If such an agreement was made and she obtained tbe deed thereby, it created an enforceable trust in favor of tbe plaintiff. Avery v. Stewart, 136 N. C., 426. She would not have acquired tbe legal title except for tbe confidence reposed in her by tbe other parties that she would perform her part of tbe agreement, and tbe law declares it inequitable that she should be permitted longer to bold it in violation of her promise. She will not be allowed to keep tbe title and repudiate tbe promise. Sykes v. Boone, 132 N. C., 199; Jones v. Jones, 164 N. C., 320; Allen v. Gooding, 173 N. C., 93. In tbe last cited case tbe Chief Justice thus states tbe law, quoting from tbe authorities mentioned: “Where one party has by bis pz’omise to buy, bold, or dispose of real property for tbe benefit of another induced action or forbearance by reliance upon such promise, it would be a fraud that tbe promise should not be enforced. Bispkam’s Eq., sec. 218. When a party acquires property by conveyance or devise secured to himself under assurance that be will transfer tbe property to or bold and appropriate it for tbe use and benefit of another, a trust for tbe benefit of such other person is charged upon tbe property, not by reason merely of tbe oral promise, but because of tbe fact that by means of such promise bo bad induced tbe transfer of tbe property to himself,” citing Glass v. Hulbert, 102 Mass., 39. This doctrine has been frequently affirmed by this Court before and since Avery v. Stewart, supra, was decided. Recent cases are Rush v. McPherson, 176 N. C., 562, citing Cohn v. Chapman, 62 N. C., 92; Boone v. Lee, 175 N. C., *193 383, at p. 386, where it was said: “In one aspect of onr case this is a parol express trust, not enforcible under the statute of frauds, but as it is a solemn declaration of one party that if the legal estate is conveyed to him he will hold it in trust for another, it would be fraudulent and unconscionable for him to acquire the legal title by this engagement to hold it for another and not comply with his promise, and therefore equity will enforce the trust, as the statute of frauds does not apply to such cases on account of the fraud and the trust created thereby,” citing Sykes v. Boone, supra; Avery v. Stewart, supra. There was not only evidence to establish this trust, but Mr. Mclver afterwards expressly ratified what was done by his attorney, and was perfectly willing that the plaintiff should have the full benefit of the transaction. The evidence shows that he did not intend that, the defendant should have the half of the land he had acquired through the purchaser at the sale, but that it should go either to all of the former owners of the half in controversy, or to any one of them who desired it. That was the view he took of it, but the material question is what the defendant agreed to do, and the jury, upon full evidence, have so found against her as to fasten a trust on the title she holds for the benefit of the plaintiff. This seems to us very plain from the record as we have construed it. There was no variance between the allegation and the proof. The complaint alleged a parol trust by agreement with Mrs. Harrington, in behalf of the plaintiff, as to the half of the land, and there is proof to show it. Mr. Mclver wanted his money — the whole of it, and was willing that the plaintiff, as one of the original .owners and mortgagors, should have the land. He left the matter entirely to his attorney, who made such an agreement, through the plaintiff’s attorney, with Mrs. Harrington, and it appears that Mr. Mclver afterwards expressed his satisfaction with what had been done by the attorneys. The plaintiff’s attorney stated to this defendant that he could get Mr. Mclver’s half interest for his client, the plaintiff, who was defendant’s brother, and it had been suggested to him that he see her and ascertain if this was agreeable to her. She replied: “That is all right; anything on earth that is reasonable, let my brother get his interest in it,” and after telling ' her that she would have to make a transfer or deed to him she said, “I will fix that at any time.” She denied that she had assented to any such arrangement or that she had promised to convey the Mclver one-half to her brother, but the jury have settled the facts, so it has been found that there was an agreement of all the parties to the settlement of the matter. Some objection has been urged to the authority of the attorneys, but there is ample evidence of it, and that they kept within the limit of it. *194 . This authority was ail express one, and not to be implied merely from the fact of the attorneyship, as in the Cases cited to us. The remaining exceptions relate to prayers for instructions tendered by the defendant as to the authority of the attorneys, the burden of proof, and the quantum thereof. We have disposed of the question as to the attorneys’ authority, and the judge charged fully and correctly as to the burden of proof, placing it squarely upon the plaintiff, and also :as to the quantum of the evidence required to be adduced by him, when he told the jury that it must be clear, strong and convincing. The •charge was singularly clear and comprehensive, and was exceedingly fair to the defendant. We have searched the reeofd diligently, and no error is to be found .therein. No error.