Cassada v. Cassada

55 S.E.2d 77, 230 N.C. 607, 1949 N.C. LEXIS 399

• Court: Supreme Court of North Carolina
• Decided: September 21, 1949
• Status: Published

Opinion

Stacy, C. J.

The question for decision is the sufficiency of the evidence, taken in its most favorable light for the plaintiffs, to survive the demurrer.

The plaintiffs having shown an admission of trust, Dixon v. Dixon, 145 N.C. 46, 58 S.E. 604, and no disavowal or adversary holding during the life of W. J. Cassada, Weeks v. Weeks, 40 N.C. 111, we think the evidence was such as to require its submission to the jury, or at least to put the defendants to their proof.

The fact that title was taken to the farm in Buncombe County prior to the sale of plaintiffs’ land in Madison would not perforce destroy the acknowledgment made by the guardian in his 1905 report that he had invested funds belonging to his wards in the “Judge West Farm.” On demurrer the inferences are to be taken in favor of the plaintiffs.

While Webster makes no reference to the verb “ownering” as used by the defendants, its meaning seems quite clear, if not entirely exact and precise. At any rate, it appears worthy of preservation as a bit of mountain lore.

There was error in entering judgment of nonsuit on the record as it now appears.

Eeversed.