Kirkpatrick v. Holmes

Shepherd, J.: His Honor, among other things, charged the jury, in substance, that the marriage having been con■tracted before 1868 the proceeds of the sale of the wife’s land became the property of the husband, and if he received it without any special agreement to invest it for her benefit in the Miles tract (the property purchased by him), she acquired no interest therein. This instruction, as well as [209] the entire charge, would be correct if the land had been sold before 1868 (Hackett v. Shuford, 86 N. C., 149), but such does not appear to be the case, as it is very apparent from the testimony that the sale was made after that date; and, this being so, we think there was error which entitles the defendant to a new trial. It does not appear when the land was acquired by the wife. If she acquired it after 1868, the proceeds of the sale would be her separate estate (Cons, Art. 10, §6); and if it went into the hands of the husband and he invested it in land, taking the title in his own name, in the absence of any agreement to the contrary, a trust would have resulted to her. Lyon v. Akin, 78 N. C., 259; 1 Perry on Trusts, § 127; Adams’ Eq., 33, note. If she acquired the land before 1868, but the sale was after that date, the proceeds would likewise be her separate estate (Morris v. Morris, 94 N. C., 613), and whatever interest the husband may have had in the lands purchased with such funds by reason of his right of occupancy as tenant by the curtesy initiate in the original land, it could not, under the Act of 1848 (Rev. Code, ch. 56), have been sold under execution. In the case of Giles v. Hunter, 103 N. C., 195, cited by plaintiff, the marriage and the conversion of the land into personalty were both before 1868, and the decision can, therefore, have no application to the facts before us. Error.