McNair v. Pope

Smith, C. J., (after stating the facts). In Mulholland v. York, 82 N. C., 510, it is held, that where one purchases land at an execution sale, under a verbal agreement with the debtor whose land is sold, that 'he shall be allowed to redeem on payment of the purchase money, a valid trust is created between the parties which will be enforced, and the authorities are, in the opinion, freely examined and discussed, and the reasons in support of the principle stated. The same rule is held applicable to a sale under a deed in trust of the debtor’s laud, in Tankard v. Tankard, 84 N. C., 286, and is affirmed generally in McLeod v. Bullard, Ibid., 515; Cheek v. Watson, 85 N. C., 195; Gidney v. Moore, 86 N. C., 484, and other cases. But to engraft such a trust upon the legal estate, the proof of its formation should be strong and convincing; and such is not the case now presented. 11 is expressly controverted in the answer, coming from the very persons who were parties to the alleged agreement, and must be cognizant of all the facts that transpired at the sale. Under our former practice an equity could not be set up in opposition to a positive denial, unless supported by more than the testimony of a single witness, and the Court, in such case, would refuse to interfere. Gaither v. Caldwell, 1 D. &. B. Eq., 504; Speight v. Speight, 2 D & B. Eq., 280; Hill v. Williams, 6 Jones Eq., 242; Longmire v. Herndon, 72 N. C., 629. While the rule does not now prevail, it affords an analogy in the quality of the proof, and its sufficiency to set up and establish a denied equity, when the controversy is about its existence. There is, indeed, no evidence of it furnished in the pleadings, and as little in the testimony of the witnesses. The most that is pi’oved is, that the lands were bought at a price somewhat below their real value, and this fact is wholly insufficient to show any agreement upon which the trust can be raised, and the Court properly instructed the jury, in deference to which, the verdict was rendered. The quantum of evidence 409 required to set up the equity was wholly inadequate, under the rule in which relief was granted in the superceded Courts of Equity, whose principles however remain, and there is no error in the ruling. The judgment is affirmed. Ely v. Early, 94 N. C., 1. No error. Affirmed.