CLARK, C. J., and MONTGOMERY, J., dissenting.
This case was before us at February Term, 1901, and is reported in128 N.C. 90. In that opinion the Court says: "The marriage having taken place since 1868, he should have said to the jury, as laid down inKirkpatrick v. Holmes, 108 N.C. 206, and approved in Ross v. Hendrix,110 N.C. 405: `If her separate estate went into the hands of her husband and he invested it in land, taking title in his own name in the absence of any agreement to the contrary, a trust would have resulted to her.' InBriscoe v. Norris, 112 N.C. 676, it is said this equitable title was `such as to enable her, upon the strength of it, to recover the land from her husband, or from any one purchasing of him with notice of her rights, or from any one who had bought the land at a sale under execution against her husband, for such person would acquire only such title as her husband had.'" That remains the law of this case, to be modified in its application in so far as the further development of the facts may require.
The following is the only issue submitted: "Was purchase money paid for the land in controversy furnished equally by Elizabeth A. Ray from her separate estate and by H. M. Ray, to procure a home for said H. M. Ray and wife? It was answered in the affirmative. This issue was objected to as insufficient by the defendant, who tendered seven different issues. We think that the issue as submitted was sufficient in form and substance to present every material fact necessary to (893) a determination of this case. When this is true, no exception thereto can be sustained. Patterson v. Mills, 121 N.C. 258; Pretzfelderv. Ins. Co., 123 N.C. 164, 44 L.R.A., 424. In Denmark v. R. R.,107 N.C. 185, this Court laid down the following rules governing the submission of issues:
1. Only issues of fact raised by the pleadings must be submitted to the jury.
2. The verdict, whether in response to one or many issues, must establish facts sufficient to enable the court to proceed to judgment.
3. Of the issues raised by the pleadings, the judge who tries the case may, in his discretion, submit one or many, provided that neither of the parties to the action is denied the opportunity to present to the jury any view of the law arising out of the evidence, through the medium of pertinent instructions on some issue passed upon.
This is in entire consonance with the rule laid down in Tucker v.Satterthwaite, 120 N.C. 118, relied on by the defendant's counsel, to the effect, "That it is the duty of the judge, either of his own motion or at the suggestion of counsel, to submit such issues as are necessary to settle the material controversies arising in the pleadings, and that in the absence of such issues, or admissions of record equivalent thereto, sufficient to reasonably justify, directly or by clear implication, the judgment
rendered therein, this court will remand the case for a new trial."Mitchell v. R. R., 124 N.C. at page 245, 44 L.R.A., 515.
Nor does it conflict with what is said in Cox v. R. R., 126 N.C. 103, and Thomas v. R. R., 129 N.C. 392, at page 396, as to the propriety of submitting separate issues in cases of negligence and others of kindred nature, where the material facts cannot be directly presented in (894) one issue or found therein except inferentially by reference to the charge of the court. The issues tendered by the defendant were unnecessary, while some of them presented merely evidentiary facts. In Timmons v. Westmoreland, 72 N.C. 587, it was held that "It is error to submit to the jury issues which involve matters of evidence only tending to establish or deny the main issue."
The motion to dismiss was properly refused, as there was evidence tending to prove the plaintiff's contentions.
We see no objection to the evidence offered by the plaintiffs to show the purpose for which the $600 was furnished by the feme plaintiff and her accompanying directions. It was competent evidence tending to prove a material fact.
We find no error either in the charge or refusal to charge. Among other prayers the defendant requested the court to charge in substance that the evidence offered by the plaintiffs was not clear, cogent and convincing. This prayer was properly refused under the authority of Lehew v. Hewitt,130 N.C. 22, where it was held that whether evidence was clear, strong and convincing was a question of weight and effect to be determined solely by the jury.
We come now to the legal effect of the verdict. The jury have found upon competent evidence and under proper instructions that the purchase money for the land in question was furnished equally by the plaintiffs, who are husband and wife, for the purpose of procuring a home for them.
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CLARK, C. J., and MONTGOMERY, J., dissenting.
This case was before us at February Term, 1901, and is reported in128 N.C. 90. In that opinion the Court says: "The marriage having taken place since 1868, he should have said to the jury, as laid down inKirkpatrick v. Holmes, 108 N.C. 206, and approved in Ross v. Hendrix,110 N.C. 405: `If her separate estate went into the hands of her husband and he invested it in land, taking title in his own name in the absence of any agreement to the contrary, a trust would have resulted to her.' InBriscoe v. Norris, 112 N.C. 676, it is said this equitable title was `such as to enable her, upon the strength of it, to recover the land from her husband, or from any one purchasing of him with notice of her rights, or from any one who had bought the land at a sale under execution against her husband, for such person would acquire only such title as her husband had.'" That remains the law of this case, to be modified in its application in so far as the further development of the facts may require.
The following is the only issue submitted: "Was purchase money paid for the land in controversy furnished equally by Elizabeth A. Ray from her separate estate and by H. M. Ray, to procure a home for said H. M. Ray and wife? It was answered in the affirmative. This issue was objected to as insufficient by the defendant, who tendered seven different issues. We think that the issue as submitted was sufficient in form and substance to present every material fact necessary to (893) a determination of this case. When this is true, no exception thereto can be sustained. Patterson v. Mills, 121 N.C. 258; Pretzfelderv. Ins. Co., 123 N.C. 164, 44 L.R.A., 424. In Denmark v. R. R.,107 N.C. 185, this Court laid down the following rules governing the submission of issues:
1. Only issues of fact raised by the pleadings must be submitted to the jury.
2. The verdict, whether in response to one or many issues, must establish facts sufficient to enable the court to proceed to judgment.
3. Of the issues raised by the pleadings, the judge who tries the case may, in his discretion, submit one or many, provided that neither of the parties to the action is denied the opportunity to present to the jury any view of the law arising out of the evidence, through the medium of pertinent instructions on some issue passed upon.
This is in entire consonance with the rule laid down in Tucker v.Satterthwaite, 120 N.C. 118, relied on by the defendant's counsel, to the effect, "That it is the duty of the judge, either of his own motion or at the suggestion of counsel, to submit such issues as are necessary to settle the material controversies arising in the pleadings, and that in the absence of such issues, or admissions of record equivalent thereto, sufficient to reasonably justify, directly or by clear implication, the judgment
rendered therein, this court will remand the case for a new trial."Mitchell v. R. R., 124 N.C. at page 245, 44 L.R.A., 515.
Nor does it conflict with what is said in Cox v. R. R., 126 N.C. 103, and Thomas v. R. R., 129 N.C. 392, at page 396, as to the propriety of submitting separate issues in cases of negligence and others of kindred nature, where the material facts cannot be directly presented in (894) one issue or found therein except inferentially by reference to the charge of the court. The issues tendered by the defendant were unnecessary, while some of them presented merely evidentiary facts. In Timmons v. Westmoreland, 72 N.C. 587, it was held that "It is error to submit to the jury issues which involve matters of evidence only tending to establish or deny the main issue."
The motion to dismiss was properly refused, as there was evidence tending to prove the plaintiff's contentions.
We see no objection to the evidence offered by the plaintiffs to show the purpose for which the $600 was furnished by the feme plaintiff and her accompanying directions. It was competent evidence tending to prove a material fact.
We find no error either in the charge or refusal to charge. Among other prayers the defendant requested the court to charge in substance that the evidence offered by the plaintiffs was not clear, cogent and convincing. This prayer was properly refused under the authority of Lehew v. Hewitt,130 N.C. 22, where it was held that whether evidence was clear, strong and convincing was a question of weight and effect to be determined solely by the jury.
We come now to the legal effect of the verdict. The jury have found upon competent evidence and under proper instructions that the purchase money for the land in question was furnished equally by the plaintiffs, who are husband and wife, for the purpose of procuring a home for them.
When the case was here before it was held that with or without an agreement, if the wife's money went into the purchase of the land, a resulting trust was created whereby the husband became a trustee for his wife to the extent of her interest. Under the facts as now found, the wife had a right to demand a conveyance jointly to herself and her husband; and she would now have a right to have the deed reformed so as to give full force and effect to her equities. This is the practical (895) result of the judgment in this case, certainly as between the parties. The effect will be to create an estate in entireties, in which the parties will hold, in the ancient language of the law, per toutet non per my. This estate is fully recognized by our law, and has not been impaired by section 6 of Article X of the Constitution. Whether it arises directly from the marital relation or from a presumption of intention,
is immaterial, so long as it exists. In Motley v. Whitemore, 19 N.C. 537, it is said (by Gaston, J.): "When lands are conveyed to husband and wife, they have not a joint estate, but they hold by entireties. Being in law but one person, they have each the whole estate as one person; and on the death of either of them the whole estate continues in the survivor. This was settled at least as far back as the reign of Edward III, as appears from the case on the petition of John Hawkins, as the heir of John Ocle, quoted by Lord Coke, 1 Inst., 187a." This case has been repeatedly cited with approval since the adoption of the present Constitution. In Bruce v. Nicholson, 109 N.C. 204, 26 Am. St., 562, the Court says (through Merrimon, C.J.): "The defendants, husband and wife, held the small tract of land conveyed to them, not as joint tenants or tenants in common, but by entireties. In contemplation of law, they were for such purpose but one person, and each had the whole estate as one person, and when one of them should die the whole estate would continue in a survivor. They, by reason of their relations to each other, could not take the fee-simple estate conveyed to them by moities, but both were seized of the entirety per tout et non per my. This is so by the common law, and is the settled law of this State," citing numerous authorities. "The nature of this estate forbids and prevents the sale or disposal of it or any part of it by the husband or wife without the assent of both; the whole must remain to the survivor. The husband cannot convey, encumber, or at all prejudice such estate to any (896) greater extent than if it rested in the wife exclusively in her own right; he has no such estate as he can dispose of to the prejudice of the wife's estate. The unity of the husband and wife as one person and the ownership of the estate of that person prevent the disposition of it otherwise than jointly. As a consequence, neither the interest of the husband nor that of the wife can be sold under execution so as to pass away title during their joint lives or as against the survivor after the death of one of them." "Indeed, it seems that the estate is not that of the husband or wife; it belongs to that third person recognized by the law, the husbandand the wife."
Among the numerous cases that might be cited, the following will serve to exemplify the principle:Todd v. Zachary, 45 N.C. 286; Woodford v.Higley, 60 N.C. 237; Long v. Barnes, 87 N.C. 329; Jones v. Potter,89 N.C. 220; Simonton v. Cornelius, 98 N.C. 433; Harrison v. Ray,108 N.C. 215, 11 L.R.A., 722, 23 Am. St., 57; Gray v. Bailey, 117 N.C. 439;Spruill v. Mfg. Co., 130 N.C. 42.
It is unnecessary to discuss the nature and effect of a resulting trust, as that point was decided, as far as it affects this case, in our former opinion; but a further discussion of the principle can be found in Gorrellv. Alspaugh, 120 N.C. 362.
While the action in this case is neither for the reconveyance of land nor for the reformation of the deed, yet we think it comes within the essential principle of Stamper v. Stamper, 121 N.C. 251. There the contract was to reconvey the land to H.H. and Anna Stamper, and it was held that the widow was entitled to specific performance. In the opinion it is said: "We must now consider the quantity of interest to be conveyed, which we think is the entire estate in the land acquired by Milton Stamper under the deed. The covenant was to (897) reconvey to H. H. and Anna Stamper. They, being husband and wife, held their equitable interest, the right to demand a reconveyance upon breach of the covenant, in entirety, with the right of survivorship."
The judgment of the court below is
Affirmed.