Hoffman v. Mozeley

100 S.E.2d 243 (1957)

247 N.C. 121

Herbert B. HOFFMAN and wife, Remona H. Hoffman, v. James P. MOZELEY and wife, Julia P. Mozeley.

No. 305.

Supreme Court of North Carolina.

November 6, 1957.

*245 Albert W. Cowper, Kinston, for defendants, appellants.

LaRoque & Allen, by G. Paul La Roque, Kinston, for plaintiffs, appellees.

HIGGINS, Justice.

The plaintiffs alleged and offered evidence to sustain the allegation that the plaintiffs furnished the defendant James P. Mozeley the full purchase price for the four lots involved, and that Mozeley had title thereto made to himself and his wife. After building a dwelling on the lots for the plaintiffs, for which they paid in full, the defendants conveyed only part of the lots. This action is to compel conveyance of the remaining portion upon the ground that a resulting trust in the property existed in favor of the plaintiffs by reason of their having furnished the purchase money. "Under such circumstances equity creates a trust in favor of such other person commensurate with his interest in the subject matter. A trust of this sort does not arise from or depend upon any agreement between the parties. It results from the fact that one man's money had been invested in land and the conveyance taken in the name of another." Deans v. Deans, 241 N.C. 1, 6, 84 S.E.2d 321, 325; Bowen v. Darden, 241 N.C. 11, 84 S.E.2d 289; Davis v. Davis, 228 N.C. 48, 44 S.E.2d 478; Teachey v. Gurley, 214 N.C. 288, 199 S.E. 83; Ricks v. Wilson, 154 N.C. 282, 70 S.E. 476; Summers v. Moore, 113 N.C. 394, 18 S.E. 712; Waddell v. Carson, 245 N.C. 669, 97 S.E.2d 222; Paul v. Neece, 244 N.C. 565, 94 S.E.2d 596; Grant v. Toatley, 244 N.C. 463, 94 S.E.2d 305.

The jury found the plaintiffs did not accept the deed in settlement of all claims and differences between the parties. That finding, which is supported by competent evidence, left the defendants under obligation to convey to the plaintiffs all lands bought with their money. "To constitute an abandonment or renunciation of claim, there must be acts and conduct, positive, unequivocal and inconsistent with [their] claim of title." * * * "* * * estoppel stands practically upon the same footing * * *." Wilmington Furniture Co. v. Cole, 207 N.C. 840, 847, 178 S.E. 579, 583.

Unsupported in law also is defendants' contention the contract to convey was void and unenforceable under the statute of frauds. It is well settled that "If one agrees, by parol, to buy land for another, and he does buy the land, and pay for it with the money of his principal, but takes the deed in his own name, equity will enforce the agreement, hold him to be a trustee, and compel him to make title to the principal; for the statute, which requires all contracts `to sell or convey land' to be in writing has no application." *246 Greensboro Bank & Trust Co. v. Scott, 184 N.C. 312, 114 S.E. 475, 477.

The only errors assigned by the defendant relate to the nonsuit and the court's refusal to submit the issues tendered by the defendants. The evidence was ample to support plaintiffs' cause of action. The issues submitted arose on the pleadings. They were determinative of the controversy.

No error.