Leggett v. . Leggett

Ruffin, J., after stating the case. To maintain his position, it is necessary that the defendant should establish two propositions: First, that by reason of the recent amendment of the constitution (Art. IV., § 8) this court can, and indeed must, in all cases that were hitherto cognizable only in a court of equity, pass upon the verdict of the jury, and, if in their opinion it should be founded upon insufficient testimony, wholly disregard it; and secondly, that in this particular ease, the evidence received and acted upon was not sufficient to warrant the court below, iu declaring a trust in favor of the plaintiff as to the land in question. A failure as to either point, it is apparent, must be fatal to his case. If for want of power in the court to disturb it, the verdict stands and is to be respected, that must necessarily conclude the question; and so too would a conclusion, on the part of the *114 court, that the evidence justified the verdict and warranted the judgment. The first proposition seems to be conclusively met by the decision made in Shields v. Whitaker, 82 N. C., 516, where it was held, that even since the amendment, this court could not look into the evidence, in any case, for the purpose of correcting the verdict of a jury, but that the same was as binding on the courts as it ever was. But if this was not ordinarily true, we should without hesitation hold it to be so in a case in which, like the present, the party had voluntarily submitted to having his cause tried by a jury, upon evidence to which no objection was made, and under instructions to which no exception was taken. It is too late, after a party has thus taken his chances, to object to the tribunal that has tried the cause as incompetent, because incapable of correctly apprehending and appreciating nice equitable distinctions between the different sorts of proof. ' The exact effect of the amendment upon the jurisdiction of this court, has never been definitely settled as yet, nor has the question — which seems necessarily to be involved in the other— as to how far it confers upon parties the right to have their causes, when purely of an equitable -nature, tried by the judge in the court below, without the intervention of a jury. These are important questions, and their solution made difficult because of the fact, that as now constituted, the same court exercises jurisdiction in both law and equity, and administers both under one common form of procedure — thereby necessarily blending the two, and making it almost impossible for the courts, in the absence of all legislative directions, to define the limits of each. But, however these questions may be ultimately decided, it will never, we surmise, be held to be law, that a party who has of his own accord accepted a trial by a jury, can insist upon-having the same facts passed upon by the court. As to the second point, we do not understand it to be questioned, but that with us a trust may be declared, and' may be *115 proved by parol. But it is insisted that to do so, the courts require, as in those cases where an absolute deed is sought to be converted into a security, something more than the mere declarations of parties — something confirmatory, and consisting of acts and circumstances dehors the deed,. Conceding this to be the rule, the court still thinks that the case discloses testimony amply sufficient to support the plaintiff’s ease, and that of the very sort said to be requisite. Outside of the simple declarations of the parties, there is the. fact that they both retained Mr. Brown as their common counsel, contributed alike to his compensation, and gave him to understand that, notwithstanding their conveyances to Coor, they still had interests in the lands to be sold, and were to be mutually interested in that to be purchased; and also, the fact that-these very shares were afterwards, and in pursuance of this very understanding, applied as credits upon the purchase money of the “Biggs tract.” These, taken in connection with the fact that their joint interest was so well known to their counsel and the clerk, as to make it necessary for the defendant to resort to falsehood in order to procure the deed to be made to himself alone, are utterly inconsistent with any other state of facts than that deposed to by the plaintiff', and which the jury have pronounced to be true. No point was made, either in the court below, or in this court, as to the propriety of a court of equity giving help to'the plaintiff!, after he had made a fraudulent conveyance of his interest in the land to Coor; but if there had been, we do not think it could have availed, since it is not the fraudulent contract which is attempted to be enforced in this case, but a subsequent agreement wholly disconnected with the other, and herein this case is distinguished from Turner v. Eford, 5 Jones’ Eq., 106. There is no error, and the judgment of the court below must be affirmed. No error. Affirmed.