Hamilton v. Buchanan

Shei’herd, C. J.: The plaintiffs claim the land in controversy under William E. Horne, who acquired the legal title by virtue of his purchase at a sale under execution against Burrell Horne in March, 1841, the Sheriff having executed a deed on the 21st of January, 1843. The defendants, who are the heirs at law of the said Burrell Horne, allege that the said William E. Horne purchased the land in trust for their ancestor, and that the terms of the trust having been complied with they are the equitable owners of and entitled to remain in possession of the same. We think there was no error in the rejection of the issues tendered by defendants, and that in no view of the case could they have been prejudiced by those submitted b3r the Court. The issue involving the existence of the trust' is in entire conformity with the answer and sufficiently broad to comprehend an agreement made either directly with Burrell Horne or with his father acting in his behalf. As to any parol agreement, made after the sale, to convey to Burrell Home, it is clear that it would be void under the statute of frauds, and the issue tending to establish the same was immaterial and properly refused. Even had there been error in respect to the issues, it would be no ground for a new trial, as we are of the opinion that his Honor was correct in holding that there was no sufficient [471] evidence to establish the alleged trust. In order to establish a parol trust, in a case like the present, the proof must not only be strong and convincing (McNair v. Pope, 100 N. C., 404), but it must also disclose an agreement amounting to a trust existing at the time of the sale. "Without entering into a discussion of the testimony we will state our conclusion that we can find nothing which brings the ease within the foregoing principle. There is an entire absence of direct testimony tending to show any agreement whatever with Burrell before tlie sale, and the conversation with the father of Burrell after tlie sale very clearly fails to disclose the existence of any such agreement made with him in behalf of his said son. The manner in which tlie parties dealt with the land, taking the most favorable view for the defendants, is not inconsistent with an agreement made subsequently to tlie sale and similar in terms to that offered to tlie father, which was that he, the father, should take the Sheriff's deed and pay tlie said "William liis money. In view of this defect in their case tlie counsel for the defendants advanced tlie position that the land having been purchased by William, the brother of Burrell, and the latter being insane, a trust grow out of the relationship of the parties. The case of Huguenin v. Basely, cited by counsel (2 White & Tudor L. C. Eq., 1156), does not sustain the contention, as there is no evidence of any dealing between the brothers in reference to the sale of the laud by the Sheriff, and there is no suggestion of fraud or undue influence, even had it been shown that tlie re was any such dealing. The relationship existing between brothers is not in itself a confidential relation to which the equitable doctrine of constructive trusts is applicable, and in the absence of circumstances tending to show that William actually occupied a position of trust to his brother or took a fraudulent [472] advantage of his infirmity, we can see no reason why he should not be permitted to purchase his land at an execution sale as well as any other person. It may also be noted that there is no testimony showing that Burrell was insane at the time of the sale in 1841, the only positive testimony upon the subject being that ho was insane after 1865. As to the statute of limitations, it is sufficient to say that, having failed to establish the alleged trust or to show any other title, the defendants and their ancestor must be deemed to have occupied the land as tenants at sufferance, in which case their possession is not considered as adverse to William E. Horne, the purchaser at the execution sale, or those, who claim under him. Hardy v. Simpson, Busbee, 325; Spencer v. Weatherly, 1 Jones, 327. We have, carefully considered all of the other exceptions of the defendants and are of the opinion that they cannot be sustained. The judgment is Affirmed.