McCorkle v. . Beatty

33 S.E.2d 753, 225 N.C. 178, 1945 N.C. LEXIS 280

• Court: Supreme Court of North Carolina
• Decided: May 2, 1945
• Status: Published

Opinion

Seawell, J.

We think that plaintiffs’ exception to the instruction given to the jury as to the weight and sufficiency of the evidence required to carry the burden of the issue must be sustained.

In a jurisdiction like ours, where the Seventh Section of the English Statute of Frauds, requiring the creation of trusts to be manifested in writing, has not been enacted, parol trusts may be imposed upon the legal title upon proof of an oral promise to hold in trust for the promisee; and parol evidence to prove such a trust is admitted “not to contradict the deed, but to bind the party to the trust which he undertook in accepting the deed.” 26 R. C. L., Trusts, sec. 41. However, the theory of admission of parol evidence in such cases is often confusingly stated, and the intensity of the proof required to establish such a trust is referred to the fact that it does tend to contradict the written instrument. Hinton v. Pritchard, 107 N. C., 128, 136, 12 S. E., 242. The propriety of applying the rule to cases of this sort is perhaps most satisfactorily explained in Boone v. Lee, 175 N. C., 383, 95 S. E., 659, as arising out of the theory that the written instrument contains the final expression of the agreement between the parties, and that one who seeks to show otherwise should be required to do so by higher degree of proof than a mere preponderance of the evidence.

At any rate, it is the rule here, and prevails with practical uniformity elsewhere, that the establishment of parol trusts is required to be by evidence “clear, strong and convincing,” or of similar character, as variously expressed. See Lefkowitz v. Silver, 182 N. C., 339, 109 S. E., 56, 23 A. L. R., 1491; also, annotations to case beginning on page 1500.

Ordinarily, in civil matters, the burden of the issue is required to be carried only by the preponderance or greater weight of the evidence; but in his definition of the preponderance of the evidence, his Honor defined this to be “evidence which is of greater or superior weight or that gives greater assurance and carries conviction to the minds of the jury”; and further defined evidence, clear, strong and convincing, as follows r “Clear, strong and convincing evidence means evidence that is clearer, stronger, more cogent and convincing in its character and weight than that required in ordinary civil eases where the burden of proof is satisfied by the greater weight or preponderance of the evidence.”

While it is conceded that a stricter degree of evidence is required in cases of this character, we are of the opinion that the terms used to define the intensity of the evidence required in the instant case are not susceptible of separate, analytical comparison with the greater weight of the evidence, especially as defined by his Honor. We think the terms of comparison used, particularly that the evidence should be clearer than that employed in cases where preponderance of the evidence is sufficient to carry the burden, goes beyond the simple requirement that the plain tiffs must prevail by evidence clear, strong and convincing, ratber than by mere preponderance of the evidence, and must have been confusing to the jury.

We have not thought it necessary to consider other exceptions, which refer to incidents which may not recur upon a retrial.

For the error pointed out, the plaintiffs are entitled to a new trial. It is so ordered.

New trial.