Dixon v. . Dixon

58 S.E. 604, 145 N.C. 46, 1907 N.C. LEXIS 251

• Court: Supreme Court of North Carolina
• Decided: September 17, 1907
• Status: Published

Opinion

Clark, O. <7.

This is an action by the husband to have his wife declared trustee for him of the property described in the complaint, which alleges that all-said property w.as bought by the defendant with money furnished her by the plaintiff under instructions to take title in his name, but that instead she took the title in her own name. The jury found the facts to be as thus alleged.

The deeds to the wife for the property were dated 14 July, 1880; 24 October, 1889; 26 January, 1889, and 15 January, 1892. This action was begun 19 January, 1904. The defendant pleaded the ten-year statute of limitations. By consent, the facts as to this plea were found by the Judge, which, in addition to what is above stated, are that while plaintiff and defendant were living together as man and wife, “knowing title had been taken in her, he, by and with her consent, took the deeds to a lawyer to have the title perfected in him, but was called off by a telegram, and the transfer was never made.” It does not appear when this occurred, but the Judge further finds that there was no evidence of any contest or friction about the title or possession of the property until the defendant instituted an action for divorce, 2 November, 1903.

It is, therefore, unnecessary to discuss the interesting question, whether the statute could run between husband and wife, for, the trust being acknowledged, it became an express trust, of which there was no disavowal or adversary holding until 2 November, 1903. Till then, the statute did not run, and the Court properly held that the plaintiff’s action is not barred by the statute of limitation. •

Affirmed.