Vincent v. Corbett

94 S.E.2d 329, 244 N.C. 469, 1956 N.C. LEXIS 427

Opinion

Devin, J.

In Gaylord v. Gaylord, 150 N.C. 222 (227), 63 S.E. 1028, this Court stated the pertinent principle of law in these words: “Upon the creation of these estates (parol trusts), however, our authorities seem to have declared or established the limitation that except in cases of fraud, mistake or undue influence, a parol trust, to arise by reason of the contract or agreement of the parties thereto, will not be set up or engrafted in favor of the grantor upon a written deed conveying to the grantee the absolute title, and giving clear indication on the face of the instrument that such a title was intended to pass.” This statement of law has been approved in numerous decisions of this Court. Carlisle v. Carlisle, 225 N.C. 462, 35 S.E. 2d 418; Jones v. Brinson, 231 N.C. 63, 55 S.E. 2d 808; Lamm v. Crumpler, 240 N.C. 35, 81 S.E. 2d 138.

The plaintiffs here seek to bring this case within the exception to the rule permitted in cases of fraud upon allegation that a promise to reconvey was made with intent at the time not to comply. True, a promissory representation containing all the elements of fraud, made merely to induce the promisee to act to his disadvantage, with intent not to comply, wherein the intent is regarded as a subsisting fact, will support an action in fraud. Wilkins v. Finance Co., 237 N.C. 396, 75 S.E. 2d 118; Roberson v. Swain, 235 N.C. 50, 69 S.E. 2d 15; Cofield v. Griffin, 238 N.C. 377, 78 S.E. 2d 131. But here we think the evidence is insufficient to support an action based on this ground.

We concur in the ruling of the court below that plaintiffs’ evidence as offered, if admitted, would not have been sufficient to make out a case for the jury. If it be conceded that the allegations in the complaint are sufficient to raise an issue, the proof offered in support is insufficient to overcome a demurrer to the evidence.

The judgment of nonsuit is

Affirmed.

Johnson, J., not sitting.