Jackson v. . Thompson

Seawell, J. The exclusion of the testimony of J. L. Thompson seems to proceed on the theory that the defendants must succeed in their claim of ownership of the land only by virtue of an order of the court, carried out in accordance with strict legal procedure, authorizing the sale of the Greene County lands and the reinvestment of the fund under another order of the court, with the report duly made and confirmed; and that parol evidence is incompetent to establish the facts. This is contrary to the uniform decisions of the Court covering the matter. Nothing else appearing, the use of the money of Christine Green and Elizabeth Davidson in the purchase of the lands herein sought to be charged with the lien of the judgment would create a resulting trust for their benefit in J. L. Thompson, the purchaser, if he received a deed in his own name, and they may follow the funds into the land with appropriate testimony. Tire Co. v. Lester, 190 N. C., 411, 130 S. E., 45; Minton v. Lumber Co., 210 N. C., 422, 187 S. E., 568; Ins. Co. v. Dial, 209 N. C., 339. The principle is so familiar that we refrain from quotation. Naturally the facts giving rise to such a resulting trust nearly always rest in parol. In North Carolina such resulting trusts are known as parol trusts: Gorrell v. Alspaugh, 120 N. C., 362, 27 S. E., 85, 87; and are, of course, subject to parol proof. Furniture Co. v. Cole, 207 N. C., 840, 178 S. E., 579; Ins. Co. v. Dial, supra; Hendren v. Hendren, 153 N. C., 505, 69 S. E., 506. In this case there is a controversy as to whether a deed had been actually made to Thompson — the plaintiff claiming that it had, and the defendant claiming that only a bond for title had been made. The acceptance of either theory would not materially vary the application of the principle of law involved. The plea that the judgment creditor had loaned to the defendant Thompson, upon the “strength of his holdings,” that is, in consideration of his financial worth, as including the property in question, and there *543 fore, bas a legal right to subject tbe property to tbe lieu of tbe judgment as against tbe rights of tbe defendants Christine Green and Elizabeth Davidson to establish a parol trust, bas no merit. There was no recorded deed to tbe judgment debtor which might have gone into an estimate of defendant’s solvency; and even if there had been the relation of a mere judgment creditor toward the property of his debtor is not of such a character as to affect or defeat the rights of cestuis que trustent. The reason for the rule is thus stated in Guaranty State Bank v. Pratt (Okla.), 180 P., 376, 378: “A judgment creditor is in a very different position from one who has bought and paid, or who has loaned money on the face of the recorded title, and he is not a bona fide purchaser, for the reason that he has parted with nothing to acquire his lien, and when the real title prevails over the apparent title he is in no worse position than he was before he acquired his lien, and for that reason equity does not regard the judgment creditor, but assists those who have invested in, and therefore, have a substantial interest in, the real estate.” See, also, J. I. Case Threshing Machine Co. v. Walton Trust Co., 39 Okla., 748, 136 P., 769. A judgment taken upon an individual debt against the holder of a mere legal title held in trust for another has no lien upon the land so held. The lien of a judgment is no more than that which is provided by the statute, and is effective only against “the real property in the county where the same is docketed of every person against whom any such judgment is rendered”; O. S., 614; and in case of the effective assertion of a parol trust there was no property interest of Thompson in this land to which lien might attach, and none to which the lien might be extended on the principle of equitable levy. Upon the circumstances of this ease the relation between the plaintiff, as judgment creditor, and the defendant J. L. Thompson, as judgment debtor, gives the plaintiff no standing to urge the lapse of time and the laches of the defendants, Christine Green and Elizabeth Davidson, in not bringing their affairs to an earlier settlement and not having accounts filed and approved and proper conveyance of the lands made to them. There is no allegation, and certainly no evidence, that the alleged trustee has either denied the trust or refused to execute it; and if he had the matter would still be between the parties to the trust. The defendants were denied the right to prove their case in the only way available to them, and in the way universally approved by the court. Wise v. Raynor, 200 N. C., 567, 157 S. E., 853; Tire Co. v. Lester, supra; Gay v. Hunt, 5 N. C., 141; Furniture Co. v. Cole, supra. In the exclusion of the evidence offered in the testimony of the defendant J. L. Thompson, and that of the corroborating witness, there was error, entitling the defendants to a new trial. New trial.