Wolfe v. . Smith

Sea well, J. Conceding tbat there was evidence to go to tbe jury as establishing a resulting trust, and we think there was, for the purpose of our review, tbis case resolves itself into a few simple propositions, wbicb are fairly stated as tbe questions involved in defendants’ brief: Was tbe trial court justified in admitting tbe testimony of tbe witness, Mrs. R. Q. Brown, as to wbat Yivie E. Smith told ber about tbe circumstances connected with tbe purchase of tbe land and tbe condition of tbe title? Was there sufficient evidence to go to tbe jury tbat defendants, or any of them, 'were innocent purchasers, for value, of tbe lands described in tbe complaint ? Could any inference unfavorable to tbe plaintiffs be drawn from the evidence relating to tbe bar of tbe statute? 1. Tbe testimony of Mrs. R. Q. Brown, standing alone, offends against tbe hearsay rule and its admission would have been error except for tbe *290 fact that J. A. Smith had been permitted, without objection, to testify to substantially the same effect, and moreover, on his cross-examination by the defendants, substantially the same facts were again brought out in evidence. The statement of the witness was merely cumulative and, considering the circumstances under which it was drawn out, its admission will not be held for reversible error. Lambert v. Caronna, 206 N. C., 616, 175 S. E., 303; Nance v. Fertilizer Co., 200 N. C., 702, 708, 158 S. E., 486; Bateman v. Brooks, 204 N. C., 176, 185, 167 S. E., 627; Shelton v. R. R., 193 N. C., 670, 674, 139 S. E., 232. 2. The evidence tends to show that the deeds of trust executed upon the land of J. A. Smith were for an antecedent indebtedness of his own. It is suggested that they were made in part for advancements or for some consideration thereafter to be supplied; but the evidence does not support this suggestion and the totals of the figures in the judgments and the deeds of trust executed therefor indicate strongly that the judgments were the entire consideration. J. A. Smith testified that the mortgages were given to secure a past due indebtedness, and we are not able to find in the record any substantial contradiction of this testimony. Since, in this respect, only one inference could be drawn from the evidence, and that favorable to the contention of the plaintiffs, the instruction given by the trial judge to the effect that if they found the facts to be as all the evidence tended to show they would answer this issue “No,” is without error. Bank v. Noble, 203 N. C., 300, 165 S. E., 732; Thomas v. Morris, 190 N. C., 244, 129 S. E., 623. 3 and 4. We cannot find any fact or circumstance that would have a tendency to contradict the plaintiff’s evidence to the effect that they had no notice of a claim adverse to them, or fact's or circumstances from which such notice might be inferred such as would start the running of the statute. The defendants rely upon the fact of registration of the deed of trust as putting the plaintiffs on notice that J. A. Smith claimed the lands adversely to the trust. The fact of registration, standing alone, however, is neither constructive notice nor is it a circumstance that would be considered in law as putting the plaintiffs on inquiry, under the evidence of this case. The alleged fact of foreclosure of the deed of trust of 1930 is not supported in the evidence except by the recitals of the conveyance made by A. J. Davis to J. A. Smith purporting to be in consequence of such sale. The recitals in this deed are not sufficient evidence to establish the fact of such public sale, if this should be relied on as a circumstance in aid of the registration of the mortgage. Ewbank v. Lyman, 170 N. C., 505, 87 S. E., 348; Tuttle v. Tuttle, 146 N. C., 484, 59 S. E., 1008; Modlin v. R. R., 145 N. C., 218, 58 S. E., 1075; Latham v. Latham, 184 N. C., 55, 113 S. E., 623. *291 For the entire period down to the institution o£ this suit the lands were in the continuous possession either of Yivie E. Smith and J. A. Smith, or, after her death, in the continuous possession of J. A. Smith, who was entitled to hold the same by virtue of his right as tenant by the curtesy. The case presents no circumstance, or combination of circumstances, which, without change of possession, might have been sufficient for the defendants in this action to rely on as notice that the trust had been violated and the trustee was asserting a claim of title in himself. Except for the conveyance in trust made after the death of Yivie E. Smith, there is no act of J. A. Smith appearing in the evidence to indicate that he did not regard the trust as binding upon him, and since the registration of that deed must stand alone as giving such notice, we do not regard it as sufficient in law. In Spence v. Pottery Co., 185 N. C., 218, 221, 117 S. E., 32, the Court said, per Stacy, J.: “It is further contended by appellants, who are judgment creditors of J. T. Spence, that plaintiffs right, if any she has, is now barred by the lapse of time, and they therefore pleaded the statute of limitations. The plaintiff and her husband have been in the continuous possession of said property since its purchase in 1906, without any apparent abandonment of plaintiff’s right, and this, under the authorities, would seem to protect her claim against the bar of the statute. Speaking to a similar question in Stith v. McKee, 87 N. C., 391, Puffin, J., said: 'That one may preclude himself by his laches from asserting a right which otherwise the courts would help him to enforce, there are abundant authorities to show. But to do so in any case, there must be something on his part which looks like an abandonment of the right, or an acquiescence in its enjoyment by another, inconsistent with his own claim or demand, and accordingly we have searched in vain for a single instance in which a court has withheld its aid in the enforcement of an equity, on the ground of the lapse of time when the party seeking it has himself been in the continued possession of the estate to which that equity was an incident.’ See, also, Mask v. Tiller, 89 N. C., 423; Flanner v. Butler, 131 N. C., 156; Norton v. McDevit, 122 N. C., 759. The husband’s possession is considered to be the possession of the wife also, where they are living together. Faggart v. Bost, 122 N. C., 520.” We think the instructions given to the jury are fully sustained by the decisions of this Court. We have examined the other exceptions in the record and do not find anything in them that would justify us in disturbing the result of the trial. In the trial of this case, we find No error.