Sorrell v. . Sorrell

BeogdbN, J. The defendant asserts that the plaintiff is not entitled to recover for the reason that the evidence discloses that the plaintiff is attempting to engraft a parol trust upon an absolute deed in favor of the grantor, and relies upon Gaylord v. Gaylord, 150 N. C., 222, 63 S. E., 1028; Tire Co. v. Lester, 192 N. C., 642, 135 S. E., 778; Waddell v. Aycock, 195 N. C., 268, 142 S. E., 10. There was neither allegation nor proof of undue influence or actual fraud involved in the transaction. Hence, if the principles announced in the cases referred to, apply, the plaintiff is not entitled to recover. However, the plaintiff insists that the evidence discloses that an active trust was created by virtue of the power of attorney executed and delivered by the plaintiff to the defendant, and that in pursuance of said agreement the defendant went into possession of said land and took full and complete charge thereof with power to contract with reference thereto, and that these facts and circumstances prevent the application of the principle announced in the Gaylord case and other cases of similar import. We do not think that the principle contended for by the defendant is determinative of the merits of this controversy. The evidence tended to *465 show an active trust relationship existing between tbe parties, and that tbe conveyance of tbe land on 24 December, 1915, by tbe plaintiff to tbe tbe defendant was in pursuance of a general scheme or agreement between tbe parties for working out and liquidating tbe indebtedness owed by tbe plaintiff. Hence, a fiduciary relationship existed between tbe parties, and while there was neither allegation nor evidence of actual fraud, tbe law presumes fraud in transactions where confidential relationships exist between tbe parties. This principle was expressed in Atkins v. Withers, 94 N. C., 581, as follows: “Tbe cases in which tbe law will presume fraud, arising from tbe confidential relations of tbe parties to a contract, are, executors and administrators, guardian and ward, trustees and cestui que trust, principal and agent, brokers, factors, etc., mortgagor and mortgagee, attorneys and clients, and to those have been added, we think very appropriately, husband and wife. Tbe rule is founded on tbe special facilities which, in such relation, tbe party in tbe superior position has of committing a fraud upon him in tbe inferior situation, and tbe law looking to the frailty of human nature, requires tbe party in tbe superior situation to show that bis action has been fair, honest and honorable, not so much because be has committed a fraud, but that be may have done so.” Norfleet v. Hawkins, 93 N. C., 392. Furthermore, at tbe time tbe plaintiff conveyed tbe land to defendant, to wit, on 24 December, 1915, tbe legal title to tbe property was then outstanding in Murchison. Notwithstanding, tbe defendant insists that tbe statute of limitations is a bar to plaintiff’s right to recover, and at all events, tbe plaintiff should be estopped by lapse of time from prosecuting tbe action. This contention, however, cannot be sustained. This Court said in Commissioners v. Lash, 89 N. C., 159: “Tbe cases in which a demand is held to be necessary, and when made to put tbe statute in motion, will be found to be concluded or finished agencies, where nothing remains to be done but to account for and pay over tbe fund. They are inapplicable to a continuous indefinite agency, in which, from tbe confidence reposed in tbe agent, be assumes fiduciary relations towards bis employer in tbe management of interests committed to bis charge and becomes a trustee. While this relation subsists, though there may have been unheeded calls on him for information, by tbe mutual acquiescence of tbe parties, it cannot be hostile so as to- permit tbe running of tbe statute.” Again, in Blount v. Robeson, 56 N. C., 73, Pearson, J., wrote: “When a confidential relation is established between parties, either by act of law, as in tbe case of copartners, tenants in common, etc., or by agreement of tbe parties as in case of a trust, or agency, tbe rights incident *466 to that relation, continue until the relation is put an end to, and the statute of limitations and lapse of time, have no application.” Lummus v. Davidson, 160 N. C., 484, 76 S. E., 474; Rouse v. Rouse, 167 N. C., 208, 83 S. E., 305; Hilton v. Gordon, 177 N. C., 342, 99 S. E., 5. Moreover, the law does not favor permitting a party to attempt to put an end to a trust in order that he may personally acquire title or ownership of property impressed with the trust. Hence, it appearing that a continuing and active trust existed between the parties, the cestui que trust is not required to take action until there has been an unqualified disavowal by clear and unequivocal acts or words. Hospital v. Nicholson, 190 N. C., 119, 129 S. E., 149. We conclude, therefore, that the question was fairly submitted to the jury, and the judgment rendered upon the verdict must be affirmed. No error.