Wolfe v. North Carolina Joint Stock Land Bank

BabNhill, J. To create a parol trust there must be an agreement amounting to an undertaking to act as agent in tbe purchase and constituting a covenant to stand seized to tbe use or benefit of another. “Tbe jurisdiction to enforce tbe performance of trusts arises where property has been accepted by one person on terms of using or bolding it for tbe benefit of another.” Reynolds v. Morton, 205 N. C., 491, 171 S. E., 781; Shelton v. Shelton, 58 N. C., 292; Riggs v. Swann, 59 N. C., 118; Lefkowitz v. Silver, 182 N. C., 339, 109 S. E., 56; Lutz v. Hoyle, 167 N. C., 632, 83 S. E., 749; Wilson v. Jones, 176 N. C., 205, 97 S. E., *317 18; Boone v. Lee, 175 N. C., 383, 95 S. E., 659; Weaver v. Norman, 193 N. C., 254, 136 S. E., 612; Mulholland v. York, 82 N. C., 510; Rush v. McPherson, 176 N. C., 562, 97 S. E., 613, and cases cited; Avery v. Stewart, 136 N. C., 426, 68 L. R. A., 776. “A mere parol agreement to convey land to another raises no trust in the latter’s favor and comes within the provisions of the statute of frauds.” Avery v. Stewart, supra; Campbell v. Campbell, 55 N. C., 364. The theme of the conversation with the vice-president of the defendant related by the plaintiff is that the bank would buy the property at the sale and would reconvey to the plaintiff for the amount procured from the Federal Land Bank. There is, however, other evidence from witnesses for the plaintiff which tends more nearly to establish a parol trust agreement. In any event, the defendant in its brief does not challenge the sufficiency of the evidence for this purpose. On its motion to nonsuit defendant rests its case upon its plea of estoppel. This plea must be sustained. Plaintiff, after the sale, in company with a representative of the Land Bank, and later accompanied by his counsel, had conversations with officers of the defendant relative to repurchasing the property. At that time he occupied it as tenant under a rental agreement. Nothing was said in respect to an alleged agreement to reconvey or to purchase for the use and benefit of the plaintiff. At plaintiff’s instance his counsel corresponded with the defendant, beginning shortly after the sale. In none of these letters is reference made to any such contract. The plaintiff was merely seeking to repurchase his land and to obtain the best possible price. When ejectment proceedings were instituted in 1934 he made no defense that he was the equitable owner of the property. On the contrary, he paid the rent and entered into a new agreement of rental, stipulating in the contract that he claimed no interest in the land other than as tenant. This conduct of the plaintiff is wholly inconsistent with and in negation of any claim of beneficial interest. At the time he entered into the .rental contract for the year 1935 he well knew that defendant had consistently refused to reconvey the property upon the terms plaintiff alleges it had agreed so to do. In the ejectment proceedings it asserted title in itself and claimed the right of possession. With this knowledge and in settlement of the ejectment action he paid the 1934 rent and executed a lease for the premises. Under the decisions of this Court he is now, by his conduct, estopped to assert equitable title to the land. Hare v. Weil, 213 N. C., 484, 196 S. E., 869; Council v. Land Bank, 213 N. C., 329, 196 S. E., 483; Bank v. Hardy, 211 N. C., 459, 190 S. E., 730; Minton v. Lumber Co., 210 N. C., 422, 187 S. E., 568; Bunn v. Holliday, 209 N. C., 351, 183 S. E., 278; Shuford v. Bank, 207 N. C., 428, 177 S. E., 408. *318 Speaking directly to the subject, Winborne, J., in Hare v. Weil, supra, says: “Tbe language of this agreement is clear and explicit. A reading of it manifests the clear intention of the plaintiffs to recognize the defendants as the landlord, and assume for themselves the role of tenants . . . The execution of this agreement is conduct positive, unequivocal and inconsistent with the claim of title under the alleged parol agreement. It is not in harmony with the existence or continuation of the trust, and manifests conclusively an intention not to rely thereon.” Here, however, plaintiff seeks to avoid the effect of his 1935 lease agreement on the grounds of fraud. The fraud relied upon is neither sufficiently pleaded nor proven. While he testified that “they (the agent of the bank), just asked me to sign my name, said it was a plain rental contract,” the fact remains that the lease agreement was prepared by plaintiff’s counsel who was present when it was executed. He had full opportunity to read it or to have it read to him by his counsel. It was “a plain rental contract” and the clause in which he stipulated that he claimed no interest in the land was just above his signature. He cannot now avoid the legal effect thereof upon mere proof that the agent of the defendant informed him that it was a lease agreement. The relationship of the parties was not such as to raise a presumption of fraud. The record discloses that at no time from the foreclosure until plaintiff instituted his action in the fall of 1935 was any mention made of an alleged parol trust agreement. The plaintiff had made repeated efforts to ascertain the terms on which defendant would reconvey and the defendant had consistently and repeatedly declined to sell for the sums offered. If there existed any parol trust agreement plaintiff well knew that defendant was claiming ownership in its own right. The parties were dealing at arms length. There being no proof of fraud, the effect of the plea of estoppel, on the evidence offered by the plaintiff, was properly presented by the motion for judgment as of nonsuit. Harrison v. R. R., 194 N. C., 656, 140 S. E., 598; Hare v. Weil, supra. The motion for judgment as of nonsuit should have been sustained. Reversed.