Opinion
(December Term, 1845.)
Where a wife and her husband turn her land into money, and she does not place her part of the money with some indifferent persons for her, and as her separate property, but suffers the whole to be paid to the husband, the clearest proof is requisite to rebut the presumption that it was paid to, and accepted by the husband, for himself, and not in trust for his wife.
Cause removed from the Court of Equity of PASQUOTANK, at the Fall Term, 1845.
Badger and A. Moore for the plaintiff.
Iredell for the defendant.
The bill was filed in 1843, and states that the plaintiff was the wife of Thomas Temple and was seized in fee of a tract of land; and that the husband made a proposition to her to sell her land and with the proceeds purchase for her other land of equal value, that should have commodious buildings for a residence on it, and take the deed in the plaintiff's name; and that she assented thereto. The bill further states, that, in pursuance of the agreement, Thomas Temple made a contract to purchase a tract of land from one Carver, and that it was agreed between them and the plaintiff, that one hundred acres of the land so contracted for, including the buildings, should be conveyed by Carver to the plaintiff instead of her own land; and that in consideration thereof the plaintiff joined her husband in a sale and conveyance of her land for the sum of $1,100, which was paid to the husband, and by him paid to Carver in part of the price of the land purchaser from Carver. The bill then states, that Temple, the husband, afterwards took a deed from Carver for the whole tract in his own name; and that subsequently he died and the land descended to the present defendants, who are his heirs-at-law. The prayer is for a conveyance of 100 acres, including the houses.
The defendants answer, that they have no knowledge upon the subject of the bill, and no information concerning it, except that derived from the statements of the plaintiff in her bill, and therefore they can not admit the allegations to be true.
There are filed, as exhibits, a deed in fee from James Carver to Thomas Temple, bearing date 2 April, 1829, (40) for a tract of land containing 161 acres, and the consideration stated is $1,710, in hand paid; and also the copy of a deed, bearing date 7 April, 1829, purporting to be made by Thomas Temple and his wife, Nancy, to Dempsey Richardson, for a tract of land containing 116 acres, in fee with general warranty, and the consideration is stated to be $1,100.
A witness proves that the land sold to Richardson was understood by him to belong to the plaintiff; that he was present when Temple and Carver made their contract in 1829, and that the plaintiff said that she would not convey her land to any person, unless she could get as much of the land that was bought from Carver, as hers would pay for; and that Carver and Temple then said she should have it. Temple, at the time, said he thought he could sell the land he claimed in right of his wife, to Richardson.
Another witness proves that he hear Temple once say, that he agreed to make his wife a separate deed for 100 acres, where the house stood; but he did not say that he was to do it, in consideration of his wife's having sold her land, and the proceeds having been applied in part payment of the land bought of Carver.
The bill is a mere skeleton, stating few particulars, and fixing no dates to any part of the transaction, nor to any event stated in it. In the most favorable view, the substance of the bill is, that there is a resulting trust to the plaintiff, upon a purchase by her husband with her land, or with the price of her land, which they sold for that purpose. Now, to sustain that case, the first step is, to show her title to the land, which she says belonged to her, and with which the purchase was made; and that is only done here by a (41) single witness, and merely upon his understanding that it was hers. It might, perhaps, be sufficient, prima facie, if the deed from Temple and his wife stated the land to have descended to her, and to be hers or claimed to be hers in fee. But the extent of her title is in no manner to be gathered from that instrument. Besides, the bill does not show the state of the family of these parties, nor their ages, nor any other matter from which the relative values of the husband's interest in the land and the wife's can be collected. But another and a decided objection is, that the evidence contradicts the bill in its essential statement, that her land was sold and the proceeds invested in this land for her; for the two deeds show that the land was purchased from Carver, and conveyed by him, five days before the plaintiff and her husband made their conveyance; and therefore, the most that can, prima facie, be made of the case for the plaintiff, is, that after her husband had purchased and got his deed, she agreed to sell her land to enable him to pay for his, provided he would agreed to sell to her 100 acres of his new purchase. But that is essentially a different case from that charged by the bill, and, if that had been the case made in the bill, the defendants would have met it at once with a plea of the statute, to make void parol contracts for the sale of land. 1819, Ch. 1016. It might have probably appeared, if the plaintiff had taken the trouble to take the testimony of witnesses, that the two contracts of sale were made some time before the conveyances, and that, in fact, the price of the plaintiff's land was in hand, and laid out in purchasing the land from Carver, and not merely in paying a debt contracted by the husband upon a previous purchase. But there is no evidence to that point, and the only time to which the witness refers, in speaking of the sale of the wife's land, was prior to the sale of it. He says the husband expected he could (42) sell it to Richardson. Now, after that, the plaintiff joined in a deed to Richardson, and let the price go into the husband's hands, whereby it became his in law, at a time when the husband's own purchase was completed by a conveyance to himself; from which, the conclusion is, that the wife then gave her husband the money, whatever might have been her intention at a previous period. It is true, that a husband and wife may, in equity, deal with each other in respect to her inheritance; but it is extremely difficult to do so, with any security to her, without the intervention of a third person as trustee, because it is hard to tell, in many cases, whether she means to stand upon her separate rights, or to surrender them to him; and, therefore, the clearest proof is requisite to rebut the presumption, when she and her husband turn her land into money, and she does not place her part of the money with some indifferent person for her, and as her separate property, but suffers the whole to be paid to the husband, that it was paid to and accepted by the husband for himself, and not in trust for his wife. Here, there is no such proof; and if the bill were properly framed and sustained by evidence in other respects, it would be dismissed for this reason.
PER CURIAM. BILL DISMISSED WITH COSTS.
Cited: Williams v. Williams, 41 N.C. 22; Hackett v. Shuford, 86 N.C. 150; Black v. Justice, Ib., 511; Giles v. Hunter, 103 N.C. 201; Woodruff v. Bowles, 104 N.C. 207; Beam v. Bridgers, 108 N.C. 279.