Furches, J.:
This case is regarded as one of importance to the parties and to the public, and as two gentlemen of recognized learning, practicing in this court, have certified that they have examined the opinion delivered at the last term and published in 116 N. C., 684, and the authorities there cited, and that they are of the opinion that there are manifest errors in this opinion, and, • a rehearing having been ordered, it becomes our duty to give the case a careful reconsideration.
The petition points out two questions involved in the case, and decided by this Court, as erroneous and the order for a rehearing is confined to these questions. The first error assigned is as to what is called in the pleadings the “Factory Lot,” which the defendant^ E. Gilmer conveyed to his sons, J. L. Gilmer and Powell Gilmer, on the 2nd day of August, 1893. As grounds of this error the petition alleges that the court overlooked the evidence of the defendant Gilmer, as follows: “That the money in the firm of Edmunds
&
Gilmer was his wife’s money and which he took out of the firm by express agreement between his wife and himself that he should take out the funds, buy the lot and construct the factory on it.” We have read the evidence of the defendant Gilmer with care and fail to find the paragraph quoted in the petition, as shown above. The petition also states that one of the notes executed by
tbe defendant Gilmer to bis wife as in 1892, was error and •should have been 1882; but upon the argument it was admitted by one of the counsel for defendant that it was given in 1892 as it appears of record.
The learned counsel who certify to the manifest error of the court say that the strongest view of the evidence for the defendant should have been taken by the court, whereas, the court selected the strongest part of the evidence for the plaintiff, and quotes the following from the evidence of the defendant J. E. Gilmer, to-wit: “It was an agreement, an understanding between me and my wife that I should use her money in this way.” And further on he says, “$9,000 or $10,000 of her money went into the factory. As for money collected in 1892 I put it by her express direction, in the factory real estate.”
We agree to the proposition that the court should have, considered the evidence most favorable to the defendant— that is, if, from the evidence of one witness, the jury might have found for defendant, and from the evidence of another, or all the other witnesses, they should have found for the plaintiff, the court should have submitted the issue of fraud to the jury, as the court could not tell which witness the jury would believe. But that is not this case. Here all the evidence relied upon by defendant comes from the defendant himself, corroborated to some extent, as he alleges, by the testimony of Edmunds and Dr. Lash. Therefore the testimony of the defendant Gilmer and of Edmunds and Dr. Lash, that contradicts the statement above quoted (and this is the strongest statement for him to be found in his testimony) is of equal credibility, as that for him. If none of it is to be believed then it proves nothing. But if one part of it is to be believed the other part is to be believed. Therefore, in order to determine whether it proves the proposition — that is, whether it proves that defendant Gilmer
used his wife’s money in the purchase of the factory property, out of which a trust was created and resulted in her and her heirs — the whole of his testimony upon this point should be considered together as a whole. It therefore becomes necessary that we should make a few quotations from the evidence of the defendant Gilmer, which we proceed to do as follows: “The money that I used of hers I gave my notes for. These notes were given the time they bear date; amount thereof $9,200 and interest amounting now to more than $13,00. In 1891 they amounted to $11,000 or $12,000. The notes, ten in number payable to Mrs. Laura A. Gilmer, put in evidence. One of these notes was given March 1892 for her half interest in the Florida lauds.” Another note for two bonds go:ten by her from I. G. Lash’s estate. I gave these notes to my wife and she told me to keep them for her in my safe. These notes were ¿‘or the large sum of money mentioned in in the deed.
Again : “The construction of the warehouse paid for by checks of Edmunds
&
Gilmer and by currencey, some of it belonged to said firm and some of it to myself. “_” In 1894 I bought Edmunds out, giving him checks on the "Wachovia Bank. I got the deed May 26, 1891, paying him $8,000_The notes were my wife’s property; I owed them to her at her death and I was keeping them for her in my safe...
“The money I got from her from 1880 to 1886, I used in general course of business. As for money collected in 1892, I put it by her express directions in the factory real estate. ”
E. C. Edmunds, former partner, and witness for defendant J. E. Gilmer, testified as follows: “In buying lot in Winston, we paid for it $2,400, out of the funds of Edmunds & Gilmer. Mrs. Gilmer had said that we must buy a lot
and build a factory thereon. The factory cost about $14,-500 ; was paid for by checks of Edmunds
&
Gilmer; sometimes we would pay cash and be reimbursed from funds that came into the business. W e began business in December, 1890, and dissolved in August, 1891. J. E. Gilmer said 'he wanted the factory to give to his sons._The lot was bought and factory built with assets of Edmunds
&
Gilmer. Mr. Gilmer paid me for my interest in 1891. ”
Dr. Lash, brother-in-law and witness for defendant Gil-mer, testified as follows : “On two occasions I remember Oapt. Gilmer and his wife being present, she told of her money being kept separate ; she said he was not to use it in his business, that it was to be kept for her children. ” “In the latter part of 1892 or early in 1893 she told me she had decided to put the boys in the tobacco business when they finished school. She thought there was a better'future for them in tobacco than in merchandising. ”
This being the evidence in the case upon the question of consideration and resulting trust in Mrs. Gilmer, and (we will sáy )plaintiif demurs to the evidence, could the Court say that it established a trust in Mrs. Gilmer? Taking the evidence of the defendant Gilmer as a whole, which we are bound to do, and which the jury would be bound to do, acting under proper instructions from the court, can it be justly claimed that there is any evidence which ought to go to a jury to establish the proposition that the factory was bought with Mrs. Gilmer’s money? Would it not be better for defendant Gilmer to reconcile this quotation made by the gentlemen who certify to the error committed by the court (as they think) by saying he used $9,000, or $10,000, he had borrowed from his wife, and for which he gave her his notes, which notes were due and owing her when she died? That it was this money he used in the tobacco business and in buying and building the tobacco
factory. Taking his evidence all together it seems to us it cannot be reconciled in any other way, -if it can in this way. Rut to establish a parol trust, the evidence must establish the facts which constitute the trust at the time of the transmission of the legal title.
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Furches, J.:
This case is regarded as one of importance to the parties and to the public, and as two gentlemen of recognized learning, practicing in this court, have certified that they have examined the opinion delivered at the last term and published in 116 N. C., 684, and the authorities there cited, and that they are of the opinion that there are manifest errors in this opinion, and, • a rehearing having been ordered, it becomes our duty to give the case a careful reconsideration.
The petition points out two questions involved in the case, and decided by this Court, as erroneous and the order for a rehearing is confined to these questions. The first error assigned is as to what is called in the pleadings the “Factory Lot,” which the defendant^ E. Gilmer conveyed to his sons, J. L. Gilmer and Powell Gilmer, on the 2nd day of August, 1893. As grounds of this error the petition alleges that the court overlooked the evidence of the defendant Gilmer, as follows: “That the money in the firm of Edmunds
&
Gilmer was his wife’s money and which he took out of the firm by express agreement between his wife and himself that he should take out the funds, buy the lot and construct the factory on it.” We have read the evidence of the defendant Gilmer with care and fail to find the paragraph quoted in the petition, as shown above. The petition also states that one of the notes executed by
tbe defendant Gilmer to bis wife as in 1892, was error and •should have been 1882; but upon the argument it was admitted by one of the counsel for defendant that it was given in 1892 as it appears of record.
The learned counsel who certify to the manifest error of the court say that the strongest view of the evidence for the defendant should have been taken by the court, whereas, the court selected the strongest part of the evidence for the plaintiff, and quotes the following from the evidence of the defendant J. E. Gilmer, to-wit: “It was an agreement, an understanding between me and my wife that I should use her money in this way.” And further on he says, “$9,000 or $10,000 of her money went into the factory. As for money collected in 1892 I put it by her express direction, in the factory real estate.”
We agree to the proposition that the court should have, considered the evidence most favorable to the defendant— that is, if, from the evidence of one witness, the jury might have found for defendant, and from the evidence of another, or all the other witnesses, they should have found for the plaintiff, the court should have submitted the issue of fraud to the jury, as the court could not tell which witness the jury would believe. But that is not this case. Here all the evidence relied upon by defendant comes from the defendant himself, corroborated to some extent, as he alleges, by the testimony of Edmunds and Dr. Lash. Therefore the testimony of the defendant Gilmer and of Edmunds and Dr. Lash, that contradicts the statement above quoted (and this is the strongest statement for him to be found in his testimony) is of equal credibility, as that for him. If none of it is to be believed then it proves nothing. But if one part of it is to be believed the other part is to be believed. Therefore, in order to determine whether it proves the proposition — that is, whether it proves that defendant Gilmer
used his wife’s money in the purchase of the factory property, out of which a trust was created and resulted in her and her heirs — the whole of his testimony upon this point should be considered together as a whole. It therefore becomes necessary that we should make a few quotations from the evidence of the defendant Gilmer, which we proceed to do as follows: “The money that I used of hers I gave my notes for. These notes were given the time they bear date; amount thereof $9,200 and interest amounting now to more than $13,00. In 1891 they amounted to $11,000 or $12,000. The notes, ten in number payable to Mrs. Laura A. Gilmer, put in evidence. One of these notes was given March 1892 for her half interest in the Florida lauds.” Another note for two bonds go:ten by her from I. G. Lash’s estate. I gave these notes to my wife and she told me to keep them for her in my safe. These notes were ¿‘or the large sum of money mentioned in in the deed.
Again : “The construction of the warehouse paid for by checks of Edmunds
&
Gilmer and by currencey, some of it belonged to said firm and some of it to myself. “_” In 1894 I bought Edmunds out, giving him checks on the "Wachovia Bank. I got the deed May 26, 1891, paying him $8,000_The notes were my wife’s property; I owed them to her at her death and I was keeping them for her in my safe...
“The money I got from her from 1880 to 1886, I used in general course of business. As for money collected in 1892, I put it by her express directions in the factory real estate. ”
E. C. Edmunds, former partner, and witness for defendant J. E. Gilmer, testified as follows: “In buying lot in Winston, we paid for it $2,400, out of the funds of Edmunds & Gilmer. Mrs. Gilmer had said that we must buy a lot
and build a factory thereon. The factory cost about $14,-500 ; was paid for by checks of Edmunds
&
Gilmer; sometimes we would pay cash and be reimbursed from funds that came into the business. W e began business in December, 1890, and dissolved in August, 1891. J. E. Gilmer said 'he wanted the factory to give to his sons._The lot was bought and factory built with assets of Edmunds
&
Gilmer. Mr. Gilmer paid me for my interest in 1891. ”
Dr. Lash, brother-in-law and witness for defendant Gil-mer, testified as follows : “On two occasions I remember Oapt. Gilmer and his wife being present, she told of her money being kept separate ; she said he was not to use it in his business, that it was to be kept for her children. ” “In the latter part of 1892 or early in 1893 she told me she had decided to put the boys in the tobacco business when they finished school. She thought there was a better'future for them in tobacco than in merchandising. ”
This being the evidence in the case upon the question of consideration and resulting trust in Mrs. Gilmer, and (we will sáy )plaintiif demurs to the evidence, could the Court say that it established a trust in Mrs. Gilmer? Taking the evidence of the defendant Gilmer as a whole, which we are bound to do, and which the jury would be bound to do, acting under proper instructions from the court, can it be justly claimed that there is any evidence which ought to go to a jury to establish the proposition that the factory was bought with Mrs. Gilmer’s money? Would it not be better for defendant Gilmer to reconcile this quotation made by the gentlemen who certify to the error committed by the court (as they think) by saying he used $9,000, or $10,000, he had borrowed from his wife, and for which he gave her his notes, which notes were due and owing her when she died? That it was this money he used in the tobacco business and in buying and building the tobacco
factory. Taking his evidence all together it seems to us it cannot be reconciled in any other way, -if it can in this way. Rut to establish a parol trust, the evidence must establish the facts which constitute the trust at the time of the transmission of the legal title. It cannot be created by parol after that time. Here, the factory lot was bought by Edmunds
&
Gilmer, in 1890, and factory buildings erected. In 1891 Edmunds sold his interest in the factory building and business to the defendant Gilmer. Gilmer paid him for the same and he executed a deed to Gilmer therefor on the 26th day of May, 1891. And one of the notes of defendant Gilmer was given the year after he purchased Edmund’s interest, and two years after Edmunds & Gilmer purchased the factory lot from "Whitaker and erected the buildings thereon. It was after Gilmer purchased Edmund’s interest in the factory that Mrs. Gilmer directed him to collect the Reynolds debt and put it in'the factory. It was the last of 1892 or early in 1893, says Dr. Lash, that Mrs. Gilmer told him she had “decided to put the boys in the tobacco business when they finished school.” And Edmunds says that in May, 1892, when defendant Gilmer bought him out, he said “he wanted the factory to give to his sons. ” So, it appeal’s that all of Mrs. Gilmer’s money, which went into the tobacco business by her direction, was after the property had been bought and paid for, and deeds executed, and at a time when a parol trust could not be constituted. We find no error as to this assignment.
The other question called to our attention by the petition in which it is alleged the court committed error, is as to the application of Chapter 453, Acts 1893, which requires the
“Trustor or
Assignor” to file a sworn schedule of preferred debts, &c., within five days, is mandatory and not directory. It was so held in this case at the last Term, and
has been so held at this Term in
Frank
v.
TIeiner
and in
Glanton
v.
Jacobs,
and we see no reason for changing this ruling as to cases in which it applies. Besides, the cases of
Frank
v.
Heiner
and
Glanton
v.
Jacobs,
this ruling is sustained by
Turnipseed
v.
Schaefer,
76 Ga., 109;
Mather
v.
McMillan,
60 Wis., 506;
Pratt
v.
Stevens,
26 Hun., N. Y., 229;
Ferry
v.
Butler,
43 Barb., 395;
Cook
v.
Kelly,
12 Abb., N. Y., 35.
The only question left for our consideration is as to whether the deed of defendant Gilmer to Sheppard is a
deed of trust
or assignment within the meaning of the statute of 1893. It was stated in the opinion of this Court at last Term, when considering this ease., that it did not apply to a mortgage given to secure a present or pre-existing debt, but only to such trust as amounted substantially to an assignment. The statute uses the terms
deeds of trust
and assignments. This conveyance is by “indenture” to J. W. Sheppard “trustee,” but this would have been the formal parts of a mortgage, deed in trust or assignment. So, it becomes necessary to look to the scope, object and result to determine whether it is such
trust
or assignment to which the statute of. 1893 applies. We find that the defendant Gilmer in his evidence, referring to it quite a number of times, with but one exception calls it “my assignment,” and once he calls it
“my deed of trust.”
It is made to secure and pay twenty odd debts and a number of creditors. The debts named amount to over $49,000, and the property assigned to the trustee brought only $25,000, when sold. Besides the debts named in the assignment or deed of trust to Sheppard, the defendant owed and was liable for about $150,000, and this conveyance conveyed substantially all the property the defendant owned, liable to execution, so nearly so that when plaintiff issued executions upon the judgments the sheriff returned
them, “unsatisfied, and no property out of which to satisfy them to be found.”
This it would seem has all the substantial elements of an assignment or, at least, is such a
deed in trust
as it was intended the Act of 1893 should be applicable.
But it is contended by defendant that this
deed in trust
has a clause of defeasance and this distinguishes it from an assignment, and authorities are cited to sustain this distinction. We do not say that this distinction is usually observed. But if allowed to prevail in cases like this, as is said in the opinion at the last Term, it would put it in the power of any insolvent debtor to avoid the provisions of this statute by leaving out some inconsiderable amount of property, or even by inserting a defeasance clause though everything was conveyed, thereby rendering the statute a nullity. We cannot agree to this.
We agree with counsel for defendant that the Act of 1893 was not intended to prevent' preferences. But it was intended to prevent fraudulent
deeds in trust
and assignments, which had become to be of such common occurrence. To do this, it required the assignor and trustor, where it was equivalent to an assignment, to file a verified schedule of the-debts preferred, stating when such debts were made, and the circumstances under which they were made, and required that the schedule shall be filed within five days from the date of registration, and the trustee or assignee shall not sell any property for ten days from the date of registration. The Act seems to make this a necessary part of the execution of such conveyances, and if the assignor does not comply with this requirement, the courts will pronounce it a legal fraud, and void.
Knight
v.
Packer,
1 Beasley, Ch. 216;
Hill, Fountain & Co.
v.
Alexander,
16 Lea, Tenn., 496.
We, therefore, fail to find that the court mistook or
omitted any important fact in considering this case at tbe last term. Nor do we find any error in the judgment then pronounced. Therefore the petition to rehear is dismissed;
Dismissed.