Brown v. . Carter

Supreme Court of North Carolina

Brown v. . Carter

15 S.E. 934, 111 N.C. 183

DecidedSeptember 5, 1892

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This text of 15 S.E. 934 (Brown v. . Carter) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Brown v. . Carter, 15 S.E. 934, 111 N.C. 183 (N.C. 1892).

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AVERY, J., dissenting. The plaintiff demurred to the counterclaim upon the ground that the said deed creates, declares and provides for a trust in favor and for the benefit of the children of the defendant, and secures to the defendant himself no beneficial interest whatever in the property thereby conveyed, and he is not bound to account in this action with the defendant as to the trust fund, etc. The court held that the defendant has an estate and interest in the property described in the deed, and gave judgment accordingly, and the plaintiff appealed. The only question raised by the appeal is the construction of the deed, and whether, under it, the defendant has any personal interest or holds solely as trustee for his children.

On a careful perusal of the deed, it is incapable of any (186) *Page 114 construction other than a conveyance to Carter and his heirs — not as trustee for his children. The recital therein as a motive for the conveyance, of a desire and a former promise to provide for the grantee's children, cannot control the plain expressions of the deed, especially in view of the sole consideration being recited to be services rendered and to be rendered to the grantor by the grantee. This, it is true, would not control if the deed had been made in fact to the grantee in trust for his children; but the language is not capable of that construction. The deed is a conveyance of a half-interest in the land described therein, and specifies the trusts and conditions as, "first, liability of fund for certain charges; second, in case of death of either party the survivor to hold moiety of deceased for his heirs; third, subject to actual expenditures," etc,; and on these trusts the conveyance is to Carter and his heirs in fee. The intention that Carter should hold for his children is not expressed in the deed anywhere.

The provision in the deed, "All proceeds received by either shall be immediately divided between the parties entitled, after paying expenses," is a contract between the parties, and matters arising thereon, whether legal or equitable, may be pleaded as a counterclaim to the plaintiff's cause of action, which arose upon contract. In such case the counterclaim need not arise out of the same transaction if it existed at the commencement of the action. The Code, sec. 244, sub-sec. 2.

NO ERROR.

(187)

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AVERY, J., dissenting. The plaintiff demurred to the counterclaim upon the ground that the said deed creates, declares and provides for a trust in favor and for the benefit of the children of the defendant, and secures to the defendant himself no beneficial interest whatever in the property thereby conveyed, and he is not bound to account in this action with the defendant as to the trust fund, etc. The court held that the defendant has an estate and interest in the property described in the deed, and gave judgment accordingly, and the plaintiff appealed. The only question raised by the appeal is the construction of the deed, and whether, under it, the defendant has any personal interest or holds solely as trustee for his children.

On a careful perusal of the deed, it is incapable of any (186) *Page 114 construction other than a conveyance to Carter and his heirs — not as trustee for his children. The recital therein as a motive for the conveyance, of a desire and a former promise to provide for the grantee's children, cannot control the plain expressions of the deed, especially in view of the sole consideration being recited to be services rendered and to be rendered to the grantor by the grantee. This, it is true, would not control if the deed had been made in fact to the grantee in trust for his children; but the language is not capable of that construction. The deed is a conveyance of a half-interest in the land described therein, and specifies the trusts and conditions as, "first, liability of fund for certain charges; second, in case of death of either party the survivor to hold moiety of deceased for his heirs; third, subject to actual expenditures," etc,; and on these trusts the conveyance is to Carter and his heirs in fee. The intention that Carter should hold for his children is not expressed in the deed anywhere.

The provision in the deed, "All proceeds received by either shall be immediately divided between the parties entitled, after paying expenses," is a contract between the parties, and matters arising thereon, whether legal or equitable, may be pleaded as a counterclaim to the plaintiff's cause of action, which arose upon contract. In such case the counterclaim need not arise out of the same transaction if it existed at the commencement of the action. The Code, sec. 244, sub-sec. 2.

NO ERROR.

(187)

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15 S.E. 934, 111 N.C. 183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-carter-nc-1892.