Kelly Springfield Tire Co. v. Lester

130 S.E. 5, 190 N.C. 411, 1925 N.C. LEXIS 90

• Court: Supreme Court of North Carolina
• Decided: November 4, 1925
• Status: Published

Opinion

Vaesee, J.

The evidence tends to sustain the contentions of both plaintiffs and the defendants, and therefore appropriate issues must be submitted to the jury in order for the facts to be determined.

The principles relating to fraudulent conveyances are set out in Aman v. Walker, 165 N. C., 227, by the late Justice Allen, as follows:

“(1) If the conveyance is voluntary, and the grantor retains property fully sufficient and available to pay his debts then existing, and there is no actual intent to defraud, the conveyance is valid.

“(2) If the conveyance is voluntary, and the grantor did not retain property fully sufficient and available to pay his debts then existing, it is invalid as to creditors; but it cannot be impeached by subsequent creditors without proof of the existence of a debt at the time of its execution, which is unpaid, and when this is established and the conveyance avoided, subsequent creditors are let in and the property is subjected to the payment of creditors generally.

“(3) If the conveyance is voluntary and made with the actual intent upon the part of the grantor to defraud creditors, it is void, although this fraudulent intent is not participated in by the grantee, and although property sufficient and available to pay existing debts is retained.

“(4) If the conveyance is upon a valuable consideration and made with the actual intent to defraud creditors upon the part of the grantor alone, not participated in by the grantee and of which intent he had no notice, it is valid.

“(5) If the conveyance is upon a valuable consideration, but made with the actual intent to defraud creditors on the part of the grantor, participated in by the grantee or of which he has notice, it is void.”

These principles are approved in the following authorities: Black v. Sanders, 46 N. C., 67; Warren v. Makely, 85 N. C., 14; Credle v. Carrawan, 64 N. C., 424; Worthy v. Brady, 91 N. C., 268; Savage v. Knight, 92 N. C., 498; Clement v. Cozart, 112 N. C., 420; Hobbs v. Cashwell, 152 N. C., 188; Powell v. Lumber Co., 153 N. C., 58; Cox v. Wall, 132 N. C., 730; Morgan v. Bostic, 132 N. C., 743; Michael v. Moore, 157 N. C., 462; Pennell v. Robinson, 164 N. C., 257; Smathers v. Hotel Co., 168 N. C., 69, 70; Garland v. Arrowood, 177 N. C., 371; Bank v. Pack, 178 N. C., 391.

These principles, however, relate to fraudulent conveyances of land that is the property of the grantor therein, and do not apply to the conveyance of property held by a mere naked trust, for another who is, in equity, the real, or beneficial, or equitable owner.

The evidence in the case at bar is ample to sustain the verdict under a proper charge which submits to the jury the contentions in the complaint, and in the answer.

However, if there is a resulting trust in favor of the defendant, Florence Lester, by virtue of the payment of the purchase money out of her funds, then W. P. Lester has no such beneficial interest in the McNair lands as may be subjected to the payment of W. P. Lester’s debts.

'A trust for the sole benefit of another does not support dower for the trustee’s widow (Hendren v. Hendren, 153 N. C., 505; Pridgen v. Pridgen, ante, 102), and the trustee has no such interest in the land as may be subjected to the payment of his debts. Mordecai’s Law Lectures, 312, 314, 316, 787, 987, 997; Thurber v. LaRoque, 105 N. C., 301; Arrington v. Arrington, 114 N. C., 116; Evans v. Cullens, 122 N. C., 55.

If a resulting trust is established the McNair land is, ab initio, the estate, the interest, the property of Florence Lester, and is liable for her debts, as provided by law, and’ subject to her right of alienation. Mordecai’s Law Lectures, 997, 998, et seq.; Holmes v. Holmes, 86 N. C., 205, 208; Bank v. Clapp, 76 N. C., 482; Miller v. Bingham, 36 N. C., 423; Rouse v. Rouse, 167 N. C., 211; Harris v. Harris, 42 N. C., 116; Carson v. Carson, 62 N. C., 58; Cheatham v. Rowland, 92 N. C., 344; Hollowell v. Manly, 179 N. C., 264; Whichard v. Whitehurst, 181 N. C., 80; Bond v. Moore, 90 N. C., 242; Dover v. Rhea, 108 N. C., 92; Fulbright v. Yoder, 113 N. C., 457; Clark v. Cox, 115 N. C., 96; Helms v. Austin, 116 N. C., 753; Wilson v. Leary, 120 N. C., 91; Allen v. Baskerville, 123 N. C., 127; Johnson v. Blake, 124 N. C., 109, 111; Smith v. Proctor, 139 N. C., 319; Gaylord v. Gaylord, 150 N. C., 237.

Hence there arises the inquiry whether, upon any view of the evidence, taken in its most favorable light for the defendant, Florence Lester, a resulting trust arises. We are of the opinion that, when so considered, it does arise. Lord Chief Baron Eyre in Dyer v. Dyer, 2 Cox, ch. 93, gives the nature of resulting trusts of the kind invoked as follows: “The clear result of all tbe cases, without a single exception, is that the trust of a legal estate, whether taken in the name of the purchaser, and others jointly or in the names of others without the purchaser, whether in one or several, whether jointly or successive, results to the man who advances the purchase money.”

The classes of resulting trusts may be stated thus:

(1) Where a purchaser pays the purchase money, but takes the title-in the name of another; (2) where a trustee or other fiduciary buys property in his own name, but with trust fund; (3) where the trusts of a conveyance are not declared, or are only.partially declared, or fail; and (4) where a conveyance is made without- any consideration, and it appears from circumstances that the grantee was not intended to take beneficially. Williams v. Williams, 108 Iowa, 91; Avery v. Stewart, 136 N. C., 426; Bispham’s Equity (9 ed.), 146.

The first class of resulting trusts as defined by Lord Chief Baron Eyre is the kind of trust set up by defendant. It is in force in this State, as well as in the other courts of this country, except where modified by statutory enactment. Cobb v. Edwards, 117 N. C., 246; Sherrod v. Dixon, 120 N. C., 63; Gorrell v. Alspaugh, 120 N. C., 367; Hughes v. Pritchard, 122 N. C., 61; Owens v. Williams, 130 N. C., 168; Sykes v. Boone, 132 N. C., 203; Gaylord v. Gaylord, 150 N. C., 227; Lehew v. Hewett, 138 N. C., 11; Ferguson v. Haas, 64 N. C., 776; Shields v. Whitaker, 82 N. C., 520; Holden v. Strickland, 116 N. C., 191.

The payment of the purchase money raises a resulting trust in favor of him who “furnishes” or “pays” or “owns” the purchase money, unless a contrary intention, or a contrary presumption of law, prevents. Holden v. Strickland, supra; Leggett v. Leggett, 88 N. C., 108; Thurber v. LaRoque, supra; Cobb v. Edwards, supra; Henderson v. Hoke, 21 N. C., 119; Moseley v. Moseley, 87 N. C., 69; Norton v. McDevit, 122 N. C., 755; Perry on Trusts and Trustees (6 ed.), 184, sec. 125 et seq.; Bispham’s Equity, supra; Rush, v. McPherson, 176 N. C., 562; Harris v. Harris, 178 N. C., 7. This trust arises between husband and wife, in favor of the wife, when land was deeded to both husband and wife. Deese v. Deese, 176 N. C., 527; Ross v. Hendrix, 110 N. C., 403; Houck v. Somers, 118 N. C., 607; Ricks v. Wilson, 154 N. C., 282; Ray v. Long, 128 N. C., 90; Cunningham v. Bell, 83 N. C., 328; 6 L. R. A. (N. S.), 383, citing many cases in this, and other states, in which this same rule has been held to apply. Consent that title be made in another’s name did not prevent a resulting trust in Summers v. Moore, 113 N. C., 394.

The contrary rule applies to the husband because the law presumes he made the deed to his wife as a gift. Nelson v. Nelson, 176 N. C., 191; Singleton v. Cherry, 168 N. C., 402.

Even wben a part payment is made tbe trust results pro tanto in favor of tbe owner of tbe funds. McWhirter v. McWhirter 155 N. C., 145; Keaton v. Cobb, 16 N. C., 439.

Tbe doctrine of resulting trusts is plainly set forth by Mr. Justice Adams in Tyndall v. Tyndall, 186 N. C., 272.

In order to establish a resulting trust, tbe proof must be clear, cogent and convincing. Harris v. Harris, supra; Glenn v. Glenn, 169 N. C., 729; Summers v. Moore, supra; McWhirter v. McWhirter, 155 N. C., 145; Hendren v. Hendren, 153 N. C., 505; Wilson v. Brown, 134 N. C., 400.

Wben properly submitted to tbe jury they determine whether tbe proof measures up to this test. McWhirter v. McWhirter, supra; Lehew v. Hewett, 130 N. C., 22; Cobb v. Edwards, supra; Hemphill v. Hemphill, 99 N. C., 436; Earnhardt v. Clement, 137 N. C., 95; Ray v. Long, 132 N. C., 894; Jones v. Warren, 134 N. C., 392; Avery v. Stewart, 136 N. C., 431; Davis v. Kerr, 141 N. C., 19; Taylor v. Wahab, 154 N. C., 219; Cuthbertson v. Morgan, 149 N. C., 76; Archer v. McClure, 166 N. C., 140, 148; Lefkowitz v. Silver, 182 N. C., 349; Cunningham v. Bell, supra.

Applying tbe foregoing principles; and viewing tbe evidence as we are required to do in a case of directed verdicts and involuntary non-suits, we are constrained to bold that there was error in directing a verdict in favor of tbe plaintiffs on tbe first issue, but there is no error in directing a verdict in favor of tbe plaintiffs on tbe second and third issues. Tbe defendant, Florence Lester, is entitled to have an issue submitted to tbe jury to determine whether she is tbe owner of tbe lands in controversy by virtue of a resulting trust arising from tbe payment of tbe purchase money out of her funds, in whole or in part.

This disposes of tbe defendants’ exceptions, save tbe competency of tbe financial statement given by tbe firm of W. P. Lester & Company, through T. B. Lester, which was offered in evidence. This evidence, in our opinion, was competent, upon plaintiffs’ contentions that this transaction was a voluntary conveyance by tbe defendant, W. P. Lester, óf bis only property to bis wife, Florence Lester, to binder, delay and defraud creditors. Bank v. Odom, 188 N. C., 672 ; 2 Wigmore on Evidence (2 ed.), sec. 1077, p. 584. Tbe partnership relations were ample and sufficient to authorize T. B. Lester to make financial statements with reference to -their business and tbe credit status of tbe firm and pro hac vice T. B. Lester was tbe agent of W. P. Lester and, therefore, tbe maxim qui per odium facit per se applies.

Mrs. Lester’s objection to the competency of this statement cannot avail, for that, if tbe facts come within tbe principles announced in Aman v. Walker, supra, and she paid no valuable consideration for the conveyance of her husband's property to her, she is affected by W. P. Lester’s acts, however innocent she may be of any knowledge of them. If, however, the resulting trust in her favor is established, she is not affected by W. P. Lester’s acts with reference to creditors, and judgment will be entered in her favor.

To the end that a new trial may be had on the first issue and on the plea of resulting trust, the judgment is reversed.

New trial.