Akin v. First National Bank

Stacy, C. J. When a verdict is set aside for error or errors in law, committed during the trial, and not as a matter of discretion, the party thereby aggrieved may appeal, provided the error or errors are specifically designated. Powers v. Wilmington, 177 N. C., 361, 99 S. E., 102; Rankin v. Oates, 183 N. C., 517, 112 S. E., 32; Smith v. Winston-Salem, 189 N. C., 178, 126 S. E., 514. See, Likas v. Lackey, 186 N. C., 398, 119 S. E., 763; Godfrey v. Queen City Coach Co., 200 N. C., 41, 156 S. E., 139. Here, the error which induced the court’s action is stated as the failure to direct a verdict for the plaintiff on the first issue in accordance with her request. This suffices for the appeal. If we look only at the deed it appears to create a passive or naked trust for the benefit of the named cestuis who were husband and wife. Hence, under the statute, G. S., 41-7, and the provisions of the instrument, the cestuis would seem to take an estate by the entirety. Security Nat. Bank. Admr., v. Sternberger, Trustee, 207 N. C., 811, 178 S. E., 595; Gold Mining Co. v. Lumber Co., 170 N. C., 273, 87 S. E., 40; Davis v. Bass, 188 N. C., 200, 124 S. E., 566; Motley v. Whitemore, 19 N. C., 537. Such was the holding in Harris v. Distributing Co., 172 N. C., 14, 89 S. E., 789. The evidence offered on behalf of the intervener falls short of establishing a trust in her favor. It is true, her foster father declared on several occasions that he was buying, or had bought, the property for his adopted daughter and her children, but these were usually accompanied by expressions, such as, “to live in as long as they would do all right,” and “that he didn’t make her any deed so she couldn’t dispose of it.” He also expressed the fear that she might “run through with it,” or *456 lose it, and that be expected to put it. in trust so be could control it. Then, wben be finally came to close tbe transaction, be instructed tbe broker to bave tbe deed made as it appears of record. There is no evidence of any mutual mistake or error on tbe part of tbe draftsman. It is as tbe purchaser wanted it. It is to be noted that some of tbe declarations, upon which tbe inter-vener relies to establish a parol trust in her favor, were made before, and some after, but none contemporaneously with tbe transmutation of tbe legal title. Furniture Co. v. Cole, 207 N. C., 840, 178 S. E., 579; Lefkowitz v. Silver, 182 N. C., 339, 109 S. E., 56; Sykes v. Boone, 132 N. C., 199, 43 S. E., 645; Williams v. Honeycutt, 176 N. C., 102, 96 S. E., 730; Blackburn v. Blackburn, 109 N. C., 488, 13 S. E., 937; Pittman v. Pittman, 107 N. C., 159, 12 S. E., 61; Wood v. Cherry, 73 N. C., 110. And those which were made before tbe transmission of tbe legal title were revoked or changed wben instructions were given for tbe preparation of tbe deed. All of these considerations distinguish tbe instant case from those cited and relied upon by tbe intervener. In fact, we bave found no decision, and none has been called to our attention, which would seem to sanction a judgment in her favor on tbe facts presently appearing of record. There was no error in setting aside tbe verdict for tbe cause assigned. Affirmed.