Peterson v. . Taylor

166 S.E. 800, 203 N.C. 673, 1932 N.C. LEXIS 73

Opinion

Adams, J.

The creation of a parol trust in the sale of real property is not within the statute of frauds but it must be established by evidence which is clear, strong, and convincing, a mere preponderance being insufficient. Hemphill v. Hemphill, 99 N. C., 436; McNair v. Pope, 100 N. C., 404; Harding v. Long, 103 N. C., 1; Summers v. Moore, 113 N. C., 394; Cobb v. Edwards, 117 N. C., 245; Kelly v. McNeill, 118 N. C., 349; Avery v. Stewart, 136 N. C., 426; Jones v. Jones, 164 N. C., 320; Gillespie v. Gillespie, 187 N. C., 40.

The issues submitted necessarily implied the existence of a trust. The instruction that the question of a trust should be determined by a preponderance of evidence entitles the appellant to a new trial.

The defendants contend that the judgments are paid and canceled and there seems to be ground for this position, but there is also evidence that they were assigned to a trustee. The facts may be more fully developed in another trial. We think there is sufficient evidence of the trust to call for the intervention of the jury. Gillespie v. Gillespie, supra. For error in the instruction there must be a

New trial.