Kelly v. McNeill

Avery, J.: The defendants requested the court to instruct the jury, among other things, that in order to establish the trust it was essential that the plaintiffs should offer some strong, clear and convincing proof of an agreement between Grimm and McNeill and Richardson, made antecedent to the sale, to the effect that the land should [354] be purchased by them upon the trust set up in the complaint. This instruction was not given either in terms or in substance, and the failure to grant the prayer is assigned as error. In order to establish a parol trust of this kind, the plaintiff must prove an agreement to buy, entered into by the defendant on an occasion anterior to the time of sale or at the sale, and before the purchase was actually made. 'k. declaration by a defendant, when the property is offered to bidders but before the purchase is made, is said to be contemporaneous in the sense that it is a part of the same transaction in which the sale is accomplished. But the bargain must be shown by declaration or otherwise to have been entered into prior to the selling, though but an instant before. Subsequent agreements by parol are void under the statute of frauds, whether made the next moment or the next year. The declaration to uses was made before the terre tenant had been completely invested with the legal estate, and it is such declarations that have been held not to fall within the provisions of our statute (Code, Sections 1552 and 1554) substituted for 29 Oar. II. So that strictly speaking any agreement that is relied upon to engraft a trust upon what appears upon its face to be an absolute deed, though it accompany the act of buying, must be made in advance of the transmission of any inter-, est by the sale. Cobb v. Edwards, 117 N. C., 244. It is the province of the jury to determine whether the proof is clear and convincing to their minds, but they must find that there is some evidence of the antecedent understanding, and sufficiently strong to convince them that the parties concurred in giving their assent to it. Cobb v. Edwards, supra; Helms v. Green, 105 N. C., 251; Ferrall v. Broadway, 95 N. C., 551; Berry v. Hall, 105 N. C., 154. [355] It is clear that in refusing the instruction asked there was error which entitles the defendants to a new trial. • New Trial.