Ellis v. Vespoint

403 S.E.2d 542, 102 N.C. App. 739, 1991 N.C. App. LEXIS 484
CourtCourt of Appeals of North Carolina
DecidedMay 7, 1991
DocketNo. 9026SC939
StatusPublished
Cited by1 cases

This text of 403 S.E.2d 542 (Ellis v. Vespoint) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ellis v. Vespoint, 403 S.E.2d 542, 102 N.C. App. 739, 1991 N.C. App. LEXIS 484 (N.C. Ct. App. 1991).

Opinion

GREENE, Judge.

The defendant appeals from a judgment entered 2 May 1990 in which the trial court ordered that title to certain real property be vested in the plaintiffs.

Prior to the introduction of any evidence, the parties stipulated that witnesses at trial were prohibited from testifying as to statements made by Queen Ellis (Ellis). The parties complied with this stipulation. Viewed in the light most favorable to the plaintiffs, the evidence tends to show the following: In January of 1962, Ellis owned approximately forty acres of land in Mecklenburg County. Ellis was the plaintiffs’ and defendant’s mother. Two of the plaintiffs, Frank Ellis (Frank) and M. B. Ellis (Pete), and the defendant wanted to borrow $5,000 from Ellis to purchase some equipment for a business which the two plaintiffs and the defendant’s husband were operating. Frank, Pete, and the defendant went to their mother and explained their desires. During the discussions, Frank, Pete, and the defendant decided that the best way to get the loan would be to have Ellis transfer title to the defendant, and then have the defendant get the loan by using the forty acres of land as collateral. They thought that title should be placed in the defendant’s name because she was the wisest of the three children. They also discussed what would happen to the land if anything ever happened to their mother. Frank and Pete testified that the defendant promised Ellis to take title to the land, make sure that the loan was repaid, and that if anything happened to their mother, she would divide the land equally among Ellis’ children.

At some time after the discussions, Pete took Ellis to her attorney where she transferred title to the land to the defendant. The defendant later obtained the loan using the land as collateral. Pursuant to the agreement, the defendant repaid the loan. Ellis remained on the land until her death in 1972. From 1962 to Ellis’ death, the defendant paid all of the property taxes on the land, made all general repairs to it, and received all of the farming income from it. Frank testified that during either 1982 or 1983, the defendant assured him that the land would remain in the Ellis [741]*741name. Pete testified that the defendant told him on numerous occasions that the Ellis children would all get their equal shares of the land.

In June of 1988, a boundary dispute arose between Earl Ellis, a plaintiff, and the defendant’s son. From this dispute there arose questions about the existence of an alleged oral trust for the benefit of the Ellis children. The defendant denied its existence, and the plaintiffs filed suit. A jury trial followed resulting in a verdict for the plaintiffs.

The issues are (I) whether the trial court erred in allowing Frank to testify about the sequence of events during which an alleged parol trust was created; (II) whether the trial court erred in denying the defendant’s directed verdict motion made at the close of the plaintiffs’ evidence; and (III) whether (A) the plaintiffs produced sufficient evidence of intent to create a trust to withstand a directed verdict motion; (B) the plaintiffs were required to produce evidence of fraud, mistake, or undue influence to establish the alleged parol trust.

I

When asked on direct examination if he remembered the exact date that he, Pete, Ellis, and the defendant discussed conveying the property to the defendant to hold for the benefit of the Ellis children, Frank testified that he did not. However, he testified that after their discussions, Ellis transferred title to the land to the defendant. The defendant argues that the trial court erred in allowing Frank to testify after admitting that he did not know the exact date of the discussions. We disagree.

In North Carolina, express trusts may be written or oral. Because North Carolina “has never adopted the Seventh Section of the English Statute of Frauds which requires all trusts in land to be manifested in writing,” real property may be made the subject of parol trusts. Bryant v. Kelly, 279 N.C. 123, 129, 181 S.E.2d 438, 441 (1971); see also Graves v. Walston, 302 N.C. 332, 340-41, 275 S.E.2d 485, 490 (1981). “[0]ur courts have ‘always upheld parol trusts in land in the “A to B to hold in trust for C” situation’ even when there is no consideration to support the transfer.” Ferguson v. Ferguson, 55 N.C. App. 341, 344, 285 S.E.2d 288, 291, disc. rev. denied, 306 N.C. 383, 294 S.E.2d 207 (1982) (quoting Bryant, [742]*742279 N.C. at 129-30, 181 S.E.2d at 442); see also G. Bogert, The Law of Trusts and Trustees § 64 (rev. 2d ed. 1984); Restatement (Second) of Trusts §§ 17(b) & 39 (1957); Lord & Van Hecke, Parol Trusts in North Carolina, 8 N.C.L. Rev. 152 (1930). “Evidence of the establishment of a parol trust is required to be clear, cogent, and convincing; a mere preponderance of the evidence is not sufficient.” Bryant, 279 N.C. at 130, 181 S.E.2d at 442. The facts of this case present the “A to B to hold land in trust for C” situation.

The requirements of an express, parol trust in the “A to B to hold land in trust for C” situation are (1) sufficient words or circumstances showing that the settlor intended to create a trust, (2) definite trust property, (3) an ascertained beneficiary, and (4) a promise by the trustee to hold the trust property in trust for the beneficiary at or before acquiring the legal title to the trust property. See Wells v. Dickens, 274 N.C. 203, 211, 162 S.E.2d 552, 557 (1968) (fourth requirement); Colwell Elec. Co. v. Kale-Barnwell Realty & Constr. Co., 267 N.C. 714, 719, 148 S.E.2d 856, 859-60 (1966) (fourth requirement); Wachovia Bank & Trust Co. v. Taylor, 255 N.C. 122, 126, 120 S.E.2d 588, 591 (1961) (second and third requirements); Williams v. Mullen, 31 N.C. App. 41, 45, 228 S.E.2d 512, 514-15 (1976) (first requirement). The defendant’s first argument raises a question involving only the fourth requirement.

Here, Frank testified that although he did not know the exact date of the discussions, he knew they occurred before Ellis conveyed the land to the defendant. This evidence was relevant to the issue raised by the fourth requirement for an express, parol trust because it shows that the discussions in which the defendant allegedly promised to keep the land for the benefit of the Ellis children occurred before title to the land passed to the defendant. Accordingly, the trial court did not err in allowing Frank to continue testifying after the defendant’s objection.

II

The defendant argues that the trial court erred in denying her directed verdict motion made at the close of the plaintiffs’ evidence. We do not address the merits of this argument. After the trial court denied the defendant’s motion, the defendant put on evidence. By doing this, the defendant waived her directed verdict motion made at the close of plaintiffs’ evidence. Rice v. Wood, 82 N.C. App. 318, 322,

Related

In Re the Purported Last Will & Testament of Sechrest
537 S.E.2d 511 (Court of Appeals of North Carolina, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
403 S.E.2d 542, 102 N.C. App. 739, 1991 N.C. App. LEXIS 484, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellis-v-vespoint-ncctapp-1991.