Opinion
December Term, 1806.
A, being subject to intoxication and on that account liable to imposition, and fearing that in some unguarded moment some person might obtain from him a conveyance of his lands, agrees with B to convey the lands to him by an absolute deed, and B agrees to hold the land as a trustee for C, one of the children of A. The conveyance being executed, C and his agents remain in possession of the lands and B does not call them to account for the rents and profits. B dies and devises the lands to C and D as tenants in common. C files a bill charging the above facts. D answers and denies the trust, and insists that the premises were purchased by B for a valuable consideration. Parol evidence will be admitted to prove the trust, as B did not take possession of the premises nor call C to an account for the rents and profits.
SHERWOOD GAY, an infant, by his next friend, Rebecca Stallions, filed a bill in the Court of Equity for Halifax District, against Charity Hunt, and therein charged that his father, Elias Gay, being seized in fee of a tract of land situate in the county of Franklin, and being a man much addicted to intoxication, and on that account often liable to imposition, and fearing that in some unguarded moment some person might obtain from him a conveyance of his said land, and desirous to secure the same so that complainant might have the benefit thereof, agreed with one William Brinkley to convey the same to him in fee, he, the said William, agreeing on his part to hold the said land in trust for the benefit of complainant and to convey the same to him whenever he should be thereunto requested. That in pursuance of this agreement Elias Gay conveyed the land to Brinkley, but that Brinkley did not give any valuable consideration for the land; that Brinkley had since died, having made his last will and testament, and therein devised the said land to complainant and the defendant Charity Hunt, to hold the same as tenants in common. That, notwithstanding the conveyance to Brinkley, complainant's friends and agents had continually kept the possession of the said land; that defendant well knew that Brinkley held the said land only as a trustee for complainant, yet that she had lately filed a petition in the County Court of Franklin for the purpose of having partition made of the said land. The bill prayed for an injunction and that defendant might be compelled to convey to complainant the legal title and claim which she had in the land.
From Halifax.
To this bill the defendant answered that she had no knowledge of any of the facts therein charged, but that she had been informed and believed that Brinkley purchased the land from Elias Gay, and paid a full and valuable consideration therefor; and that the said purchase was made and the deed executed without any trust, and subject to no condition whatever. The answer admitted that Patsey Gay, the mother of (142) complainant and also of defendant, had kept possession of the land, but alleged that this possession had been suffered from motives of affection for a parent.
Sundry depositions were taken in the cause, which proved the agreement and trust charged in the bill; and the cause coming on to be heard, the question was made and sent to this Court, whether as the deed to Brinkley purported to be absolute and for a valuable consideration, and the agreement and trust charged in the bill were expressly denied by the answer, parol evidence could be admitted to prove the agreement and trust.
The conveyance to Brinkley was not made with any fraudulent intent or from any motive of moral turpitude. This case is therefore free from the common objections to relief in cases of secret trust. Whether parol evidence will be admitted to set up a trust, where a deed is absolute, depends much upon the particular circumstances of each case in which it is attempted. In the present case the Court are of opinion that the parol evidence should be admitted, as Brinkley did not take possession of the premises conveyed to him, nor call upon those in possession for an account of the rents and profits; and this "being contrary to the ordinary effect of a sale, gives an impression of a trust of some kind, between the parties, and admits the introduction of evidence to explain the trust." 1 Wn. 14.
Cited: Clement v. Clement, 54 N.C. 185; Ferguson v. Haas, 64 N.C. 778.