" 44 Am. Jur., 83, Quieting Title, p. 67. "Where the defendant substantially asserts and relies on a fact as an affirmative issue, the burden is on him to establish it." 74 C.J.S., Quieting Title, 76, Presumptions and Burden of Proof, p. 118; McCullen v. Durham, 229 N.C. 418, 50 S.E.2d 511; Hayes v. Cotton, 201 N.C. 369, 160 S.E. 453; Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142. [8, 9] The trial court, as a matter of law, adjudged the plaintiff is the owner and entitled to possession of the two tracts of land described in the complaint.
We think the theory adopted and followed by plaintiffs and by the trial judge was erroneous because, even if the deed from Mrs. Edmonds to her daughter was an ordinary deed on its face, it could be considered a conveyance in trust if the parties thereto so intended. On the question of whether a conveyance purporting on its face to convey a fee may be shown by parol evidence to have been intended as creating a trust in the grantee, when a cause of action is based directly on the deed, there is some split of authority. For example, the North Carolina case of McCullen v. Durham, 229 N.C. 418, 50 S.E.2d 511, 516-517, holds that this cannot be done. On the other hand, the prevailing rule seems to be to the contrary.
Elledge v. Welch, 238 N.C. 61, 67, 76 S.E.2d 340, 344, and cases cited. This view is strengthened by the fact that a wife cannot convey her real property to her husband, either directly or indirectly, without complying with the privy examination provisions of G.S. 52-6 which requires the certifying officer who examines the wife to incorporate in his certificate a finding that the transaction is not unreasonable or injurious to her. Brinson v. Kirby, 251 N.C. 73, 110 S.E.2d 482; Pilkington v. West, 246 N.C. 575, 99 S.E.2d 798; Davis v. Vaughn, 243 N.C. 486, 91 S.E.2d 165; McCullen v. Durham, 229 N.C. 418, 50 S.E.2d 511; Ingram v. Easley, 227 N.C. 442, 42 S.E.2d 624. Absent a certificate by the examining officer containing a finding to that effect, such purported conveyance is void. Davis v. Vaughn, supra; Honeycutt v. Bank, 242 N.C. 734, 89 S.E.2d 598; Davis v. Bass, supra [ 188 N.C. 200, 124 S.E. 566]; Wallin v. Rice, 170 N.C. 417, 87 S.E. 239. Neither of the deeds involved in this exchange contain such a finding by the examining officer.
G.S. 1-196; Jenkins v. Trantham, 244 N.C. 422, 94 S.E.2d 311; McIntosh, North Carolina Practice and Procedure 508 (1929). The pleadings must support the judgment, which may not be based on facts not alleged in the complaint and entirely inconsistent with it. McCullen v. Durham, 229 N.C. 418, 50 S.E.2d 511; Shelton v. Davis, 69 N.C. 324. Although the parties may not agree upon improper issues, Nebel v. Nebel, 241 N.C. 491, 85 S.E.2d 876; Miller v. Miller, 89 N.C. 209, they may, by stipulation or judicial admission, establish any material fact which has been in controversy between them, and thereby eliminate the necessity of submitting an issue to the jury with reference to it.
(Italics ours.) Trust Co. v. Levy, 209 N.C. 834, 184 S.E. 822; accord, Strigas v. Insurance Co., 236 N.C. 734, 73 S.E.2d 788; Sanders v. Hamilton, 233 N.C. 175, 63 S.E.2d 187; McCullen v. Durham, 229 N.C. 418, 50 S.E.2d 511. Defendants here, having chosen to rest their defense upon the transcript of a former trial in which they failed to offer evidence essential to the defense, have no cause to complain of an adverse judgment when the transcript affirmatively discloses their failure to carry the burden of proof which the law puts upon them. Although we do not adopt his reasons, the conclusion of the trial Court that defendants are liable for their failure to perform the contract is sustained.
As to rule that instructionsshould be confined or limited to the issues madeby the pleadings: 202 S.C. 244, 24 S.E.2d 369; 199 S.C. 283, 19 S.E.2d 452; 196 S.C. 139, 12 S.E.2d 921; 228 S.C. 144, 89 S.E.2d 197; 88 C.J.S. 977, Sec. 381; 71 C.J.S. 1068. As to matter of agencynot being affirmed by Plaintiff, and not being an issue inthis case: 229 N.C. 418, 50 S.E.2d 511; 246 N.C. 63, 97 S.E.2d 457; 241 N.C. 491, 85 S.E.2d 876. As to requirement that relevant evidence must have probativevalue: S.C.L.Q. Vol. 9, 4A, p. 48; 55 S.E.2d 337, 215 S.C. 374; 31 S.E.2d 148, 205 S.C. 98; 15 S.E.2d 232, 197 S.C. 294; 2 S.E.2d 532, 190 S.C. 158; 110 S.E. 674; 118 S.C. 361.
A judgment rendered out of the county without consent is subject to attack by motion in the cause. Cox v. Boyden, 167 N.C. 320, 83 S.E. 246. (2) Conceding consent to a hearing, could the court under the complaint and answer and the consent order do more than determine (a) the estates which the several parties took under the will of Bailey J. Overton, and (b) the desirability of a sale and reinvestment of the entire proceeds? Rev. 1590; Pruitt v. Taylor, 247 N.C. 380, 100 S.E.2d 841; McCullen v. Durham, 229 N.C. 418, 50 S.E.2d 511; Simms v. Sampson, supra; Land Bank v. Davis, 215 N.C. 100, 1 S.E.2d 350; Caudle v. Morris, 160 N.C. 168, 76 S.E. 17. The statutory authority now given to ascertain and pay over to the life tenant the present value of his interest was inserted in what is now G.S. 41-11 by c. 88 P.L. Extra Session 1921. It would not seem necessary to take parol testimony to determine whether the irregularities asserted by movant exist.
Whether Dail was a bona fide purchaser or a strawman was a question of fact. The burden rests upon those asserting the invalidity of the deed to establish that it is not in fact what it purports to be. McCullen v. Durham, 229 N.C. 418, 50 S.E.2d 511. The mere fact that on the following day the property was conveyed to the husband and the consideration recited in each deed was the same is not sufficient to conclusively establish that Dail was a mere means to accomplish an illegal purpose. Intervenors had a right to insist on findings of fact by a jury or by the court, but here they have stipulated the facts.
The notary public who took the examination did not, however, make any findings of fact or conclusions of law as required by G.S. 52-12 that the instrument was not unreasonable or injurious to the feme plaintiff, the owner of the property. The absence of such conclusions and findings renders any estate or trust attempted to be set up in favor of the husband void. McCullen v. Durham, 229 N.C. 418, 50 S.E.2d 511; Ingram v. Easley, 227 N.C. 442, 42 S.E.2d 624; Fisher v. Fisher, 217 N.C. 70, 6 S.E.2d 812; S.c., 218 N.C. 42, 9 S.E.2d 493. The statutory avoidance of any beneficial interest in the husband by the conveyance to Sentelle as trustee, coupled with the stipulation that feme plaintiff now has no children and will not hereafter have a child, leaves Sentelle as trustee having legal title for the sole use, behoof and benefit of the said Eva Morgan Pilkington for her life and then to her heirs.
Hayes v. Ricard, 244 N.C. 313, 93 S.E.2d 540; Norman v. Williams, 241 N.C. 732, 86 S.E.2d 593. Defendant cannot justify the trespass without pleading it. Issues arise only on the pleadings. McCullen v. Durham, 229 N.C. 418, 50 S.E.2d 511; Cecil v. Henderson, 121 N.C. 244. If defendant would justify his trespass, he should plead it. Everett v. Smith, 44 N.C. 303; Kirkpatrick v. Crutchfield, 178 N.C. 348, 100 S.E. 602; Jennings v. Fundeburg, 13 M'Cord 161 (S.C.); Blackburn v. Bowman, 46 N.C. 441; 52 Am. Jur. 886, 887; G.S. 1-543. There was error in striking defendant's first further defense. Was the court correct in striking defendant's second further defense? Defendant asserts that plaintiffs have been fully compensated for any loss which they sustained by virtue of insurance carried on the property.