Anderson v. . Harrington

79 S.E. 426, 163 N.C. 140, 1913 N.C. LEXIS 136

• Court: Supreme Court of North Carolina
• Decided: October 1, 1913
• Status: Published

Opinion

BkowN, J.

In tbe view we take of tbis case, it is unnecessary to consider eacb of tbe numerous assignments of error.

In tbe briefs tbe action appears to be treated as one to settle a copartnership, whereas it is in reality an action to set up and establish a parol trust in land.

Tbe defendant requested bis Honor to charge tbe jury:

“There is no evidence in tbis case to sustain a recovery of an interest in land. In order to recover land, there must be some memorandum in. writing signed by tbe party to be bound thereby.”

Tbis is not an action for specific performance of a contract in tbe sale of land, but one to establish a trust. One of tbe four methods of creating a trust is by contract, based upon valuable consideration, to stand seized to tbe use of or in trust for another. Wood v. Cherry, 73 N. C., 115.

It is so well settled in tbis State that tbe statute of frauds, requiring a memorandum in writing in respect to tbe sale of land to be signed by tbe party charged, does not apply to tbe declaration of trusts, that it is a waste of time'to discuss tbe question at tbis late day. Riggs v. Swan, 59 N. C., 118.

At common law it was not necessary that a trust be declared in any particular mode. In England tbe statute requires that declarations of trust be evidenced ■ and proved by some writing, but in tbis State there is no such requirement, and therefore tbe matter stands as at common law. Riggs v. Swan, 59 N. C., 118; Shelton v. Shelton, 58 N. C., 292.

In view of tbis well settled principle, it has been held that where one person buys land under an agreement to do so and to bold it for another until be repays tbe purchase money, tbe purchaser becomes a trustee for tbe party for whom be purchases tbe land.

Cobb v. Edwards, 117 N. C., 244; Holden v. Strickland, 116 N. C., 185; Owens v. Williams, 130 N. C., 165.

Tbe jury have found tbe facts set out in section 1 of tbe complaint to be true. Those facts are sufficient to create a trust in tbe defendant for plaintiff’s benefit, and it necessarily follows tbat tbe judgment pronounced by bis Honor is correct.

Tbe motion to nonsuit was properly denied, as there is abun-. dant evidence introduced by tbe plaintiff tending to establish tbe trust alleged in the complaint.

No error.