B M & W of Fayetteville, Inc. v. Barnes

JOHNSON, Judge. Two primary issues are presented by this appeal: (1) whether the court properly granted summary judgment in favor of plaintiff; and (2) whether the court properly considered the affidavit of Harvey Mitchell Smith, which was submitted in support of plaintiffs motion for summary judgment. For the following reasons we find no error and affirm the entry of summary judgment for plaintiff. Summary judgment is proper when the “pleadings, depositions, answers to interrogatories, and admissions of file, together with the affidavits, if any, show that there is no genuine issue as [602] to any material fact and that any party is entitled to judgment as a matter of law.” G.S. 1A-1, Rule 56(c). The burden is upon the party moving for summary judgment to show that there is no genuine issue of law. Caldwell v. Deese, 288 N.C. 375, 218 S.E. 2d 379 (1975). If the movant meets this burden, the burden then shifts to the non-movant to set forth specific facts showing that there is a genuine issue of material fact for trial. Lowe v. Bradford, 305 N.C. 366, 289 S.E. 2d 363 (1982). In the present case, plaintiff attached to its motion the affidavit of Harvey Mitchell Smith in which he averred that he, acting on behalf of plaintiff corporation, negotiated the purchase of the real estate in question; that he mistakenly told the seller of the property to list Harvey Mitchell Smith, Marvin William Smith and William Homer Barnes as purchasers of the property on the offer to purchase and contract; that the offer to purchase and contract was signed only by him on behalf of plaintiff corporation; that upon the signing of the contract and before the delivery of the deed, checks totalling $10,000, written on plaintiffs bank account or from funds obtained by plaintiff, were delivered to the sellers as a down payment of the purchase of the property; that the deed to the property was made to the three men rather than to the corporation; that the three men executed a purchase money note and deed of trust; that all further payments, including payments of interest and principal on the note, taxes and insurance on the property, and for improvements to the property, were paid by the plaintiff; and that the property appeared on the plaintiffs books as an asset and the note as a liability. Attached to the affidavit were the offer to purchase and contract, the deed, checks written on plaintiffs account and plaintiffs financial statements. In opposition to plaintiffs motion, defendants produced the affidavit of John Shaw, an attorney, who averred that he prepared the offer to purchase and contract, purchase money note and deed of trust and deed conveying the property to the three men pursuant to instructions he received from the sellers of the property. It is well settled that in the absence of evidence indicating a contrary intent, when the purchase price of property is paid by one person but title is taken in the name of another, a resulting trust arises in favor of the one who furnishes the consideration. Vinson v. Smith, 259 N.C. 95, 130 S.E. 2d 45 (1963); Cline v. Cline, [603] 297 N.C. 336, 255 S.E. 2d 399 (1979). Citing language in Waddell v. Carson, 245 N.C. 669, 97 S.E. 2d 222 (1957), defendants argue that in order for a purchase money resulting trust to arise in favor of plaintiff, plaintiff must have incurred an obligation to pay the remainder of the purchase price of the property at or before the time of the conveyance. We disagree. The language defendants cite is dictum. Defendants have not cited, nor can we find, any cases in this State which hold that the incurring of an obligation before or at the time of a conveyance is a prerequisite for the imposition of a resulting trust. Indeed, in Furniture Co. v. Cole, 207 N.C. 840, 178 S.E. 2d 579 (1935), a shareholder of the plaintiff corporation made the down payment on the purchase of real property with funds of the plaintiff, and signed a deed of trust securing the balance of the purchase price. The note secured by the deed of trust was carried as a liability and the property was carried as an asset in plaintiffs books. The plaintiff also paid taxes on the property. The Court upheld the jury’s verdict that the plaintiff corporation had furnished the consideration for the conveyance, and thus was entitled to have a resulting trust imposed in its favor. The Court did not say that the plaintiffs signing of the note or deed of trust was a prerequisite to the imposition of a resulting trust. The facts in the present case are on all fours with those of Furniture Co., supra. The forecast of evidence is undisputed that all payments on the property, down payment or otherwise, have been made with corporate funds; that the plaintiff has paid all taxes and insurance of the property; and that the note and property appears on the plaintiff s books as a liability and fixed asset, respectively. Based upon these uncontroverted facts, plaintiff was entitled to the imposition of a resulting trust in its favor. There being no genuine issue of material fact and plaintiff being entitled to judgment as a matter of law, summary judgment in favor of plaintiff was therefore properly granted. Defendants argue summary judgment was improper because there is a genuine issue of material fact as to the statute of limitations if this action is one to reform a deed based on mistake, which is governed by a three year statute of limitations under G.S. 1-52(9). This action, however, is one to impose a resulting trust, which is governed by a ten year statute of limitations. G.S. 1-56 (1983); Bowden v. Darden, 241 N.C. 11, 84 S.E. 2d 289 (1954). [604] Even if there is an issue of fact as to whether the Smiths should have discovered that their names were on the deed in 1978, this action was commenced in 1984, well within the ten year period of limitations. Defendants also contend that Harvey Mitchell Smith’s affidavit should not have been considered by the court on the ground that it was not competent under the parol evidence rule or G.S. 8-51 (1983), commonly known as the “dead man’s statute.” These contentions have no merit. Parol evidence is admissible for the purpose of engrafting a parol trust on legal title provided the declaration of trust is not in favor of the grantor. Tomlinson v. Brewer, 18 N.C. App. 696, 197 S.E. 2d 901, cert. denied, 284 N.C. 124, 199 S.E. 2d 663 (1973). The dead man’s statute does not bar one from testifying as to his own acts or matters as to which he has independent knowledge not acquired in a communication or transaction with a deceased person. Waddell v. Carson, supra; Carswell v. Greene, 253 N.C. 266, 116 S.E. 2d 801 (1960). Here, Smith’s affidavit primarily concerns his own acts, and does not relate to transactions or communications with the deceased, William Homer Barnes. For the foregoing reasons, the judgment of the superior court is Affirmed. Judges Wells and COZORT concur.