#### JOSIAH HAMILTON et al. v. JOHN A. BUCHANAN et al.

Issues — Parol Trust■ — Statute of Frauds — Evidence—Statute of Limitations.

1. Wliere an issue submitted by the Court is in entire conformity with the answer and broad enough to comprehend an alleged parol trust set up by the answer as having- been made with the defendant or with another in his behalf and is substantially the same as the issue tendered by defendant, it is not error to refuse to submit the latter.

2. A parol agreement by a purchaser of land, made after the purchase, to hold the land in trust for another, and to convey it to him upon the payment by him of the amount bid, is void under the statute of frauds.

3. In order to establish a parol trust in the purchaser of land for the benefit of another, the proof must not only be strong and convincing, but must also disclose an agreement amounting to a trust existing at the time of the sale.

4. Where a brother of an execution debtor, who was alleged to be insane at the time of the sale, purchased the insane brother’s land, and there is no evidence that the purchaser occupied a position of trust to his brother, or took any advantage of his infirmity : Held, that no trust grew out of the relationship of the parties, such relationship not being, in itself, a confidential relation to which the equitable doctrine of constructive trust applies.

•1. Where defendants in ejectment, alleging as a defence a parol trust by the plaintiff for the benefit of their ancestor, under whom they claim, plead the statute of limitations, but fail to establish the trust or to show any other title, the defendants and their ancestor, under whom they claim and for whose benefit the alleged trust was made, must be regarded as tenants at sufferance whose possession cannot be deemed to have been adverse to the purchaser at the execution sale, or to those who claim under him.

Civil actiost for tlie recovery of land, tried before Boy-kin, J., and a jury, at Spring Term, 1892, of Ansosí Superior Court.

*464This action was originally begun October 26, 1881, by William E. Horne against Burrell Horne and John A. Buchanan. William E. died, and his executors, devisees and heirs at law were made parties plaintiff. Burrell also died, and his heirs at law were made parties defendant. The executor of William then died, and his personal representative was made a party plaintiff, and under an alleged power contained in the will of W. E. Horne sold the land in controversy to Josiah Hamilton and others, who were, by order of the Court, substituted as plaintiffs in this action.

The plaintiffs claim the land under William E. Horne, who purchased the same at sale under execution against Burrell Horne in 1841 — the Sheriff’s deed being dated January, 1843.

Defendants aver that William E. Horne agreed before or at the sale to let his brother have the land or the benefit of it whenever the amount bid by him should be repaid; that he also agreed with Burrell after the sale to the same effect, and also made the same agreement with the father of Burrell for and on behalf of the latter, and that the amount bid by William has been repaid. They also plead the statute of limitations against the present plaintiffs.

A jury being duly impaneled, the defendants tendered and insisted upon the following issues:

1. Did William E. Horne agree by parol, before he bid off the land in controversy at Sheriff’s sale, that he would take title to said land and hold the same for Burrell Home, and that Burrell Horne should have the land or the benefit of the land whenever the bid of William E. Horne on said land was paid ?

2. Did William E. Home agree, after he bid off the land at Sheriff’s sale, that Burrell Horne should have the land as soon as or whenever he paid back to William E. Horne, *465or was paid back for him, the amount bid by W. E. Horne for said land?

3. Was it agreed by W. E. Horne and his father, for and in behalf of Burrell Horne, that he, Burrell Home, should have the land as soon as W. E. Horne was paid back whatever he bid and paid for the land?

4. Was there an agreement between W. E. Horne and Burrell Horne before W. E. Horne bid off the land, and after he bid off the land, and was it part of the purchase of said W. E. Home that Burrell Horne was to have the land when he, or any one for him, paid the amount bid by W. E. Horne for said land?

5. Was there an agreement between W. E. Home and his father, acting for Burrell Home, before and after W. E. Horne bid off the land, that Burrell Horne vras to have the land back from W. E. Horne as soon as the land was paid for by Burrell Horne, or by some one acting for him or in his behalf?

6. Has the amount paid for said land, the subject of this action, by W. E. Horne as and for the price of said land, and as and for his bid therefor at said sale, been paid to W. E. Horne, and ivas it paid to him before this action was commenced for Burrell Horne, or some one acting for Bur-rell Horne?

7. Was any part of the money paid by W. E. Horne for said land paid back to him, before the suit was begun, by Burrell Home or some one for him or in his behalf?

8. Hoes any part of the money paid by W. E. Horne for said land remain unpaid; was W. E. Horne the owner of said land; are the plaintiffs the owners of any part of said land; was the money paid by W. E. Horne for the land paid in full, and W. E. Horne accepted it as such in full payment for the land?

*466The Court refused the foregoing issues tendered by the defendants and settled the following as the proper issues:

1. Did William E. Horne purchase the land described in the complaint in trust for Burrell Horne upon the agreement that on the repayment to William E. Horne by Bur-rell Horne of the amount of the bid said land should be reconveyed by said William E. Horne to said Burrell Home ?

2. If so, has the said Burrell Horne heretofore paid, or caused to be paid, to said William E. Home the amount of the said bid?

3. Is the defendant’s equitable defence barred bjr the lapse of time?

4. Is the plaintiff’s cause of action barred by the lapse of time?

5. What is the annual rental value of the land described in the complaint?

The defendants excepted to the refusal of the Court to adopt their issues tendered and to the issues as framed and settled by the Court.

Plaintiffs introduced (1) deed from Joseph White, Sheriff of Anson County, to William E. Horne, dated January 12, 1880, conveying the land in controversy; (2) will of William E. Horne, dated October 3, 1879, and probated 30th June, 1882; (3) deed from C. N. Simpson, administrator d. b. n. 'c. t. a., to M. L. Horne and others (plaintiffs), dated Feb-ruaiy 24, 1891.

Defendants objected to the introduction of the will on the ground that the land is not described therein, and to the introduction of the deed of Simpson, administrator, etc., on the ground that the same is made to parties not named in the original summons, and because they had no title until it was given in February, 1891, and because the order made at Spring Term, 1891 (substituting the grantees in *467said deed as plaintiffs), was made contrary to law. Both objections were overruled and defendants excepted.

It was admitted that William E. Home was the owner of locus in quo when the will was made, if there were no trust relations between him and Burrell Horne.

J. J. Billingsley, for defendants, testified: “In the early part of 1880 had conversation with William E. Horne, about the time Burrell Horne and John A. Buchanan went into the house on the land. He seemed to think it was all right as to Burrell’s being there, but not as to Buchanan. Said he came to Wadesboro one day, and after he arrived in town learned that Burrell’s land was to be sold by the Sheriff. He bid it off and paid the money for it, and took deed for it that same evening. He went home, passed his father’s house, took out the deed and said to his father, ‘Here, father, you take the deed and pay me back my money, and you do what jrou please with Burrell’s land.’ Said he did not want anything to do with it. Said that his father remarked that if he took the deed, paid the money and gave the deed to Burrell it would be sold again. That his father told him to keep the deed and he would pay him back. W. E. Home said ho had been paid. Old man said he wanted his son Burrell to have a home. W. E. Horne said Burrell had gone crazy and run off, and that he rented the land to get pay on other accounts due him by Burrell. Said Burrell had sold Joel Gaddy some of the land. That Gaddy came to him to sign the deed. That he told Gaddy it was Burrell’s land. Heard W. E. Home and George W. Little talking about the repair of division fence between Little and locus in quo. Horne told Little not to cut any oak for the purpose, as his brother Burrell might come back and want wood. Burrell Horne was insane many years of his life. Don’t know how long. He wandered *468about a great deal. Not competent while in this state to attend to business.”

Cross-examined. — Witness said William E. Horne had charge of the land a good many years, and rented it to one Tillman. Had it while witness lived at G. W. Little’s, and he lived at Little’s from 1870 to 1876. W. E. Horne was a man of large estate.

Dilsey Horne testified that she “belonged to Burrell Horne awhile, and afterwards to W. E. Horne. Burrell Horne gave meto W. E. Home to pay for some land. Don’t know when it was now, nor for what land.”

Cross-examined. — “Don’t know how old I am. Don’t know how long I lived with W. E. Horne. Belonged to Ephraim Horn's, father of W. E. Horne and Burrell Horne, before I belonged to them. Burrell was mightily in debt. Sheriff was after what he had when he turned me over to W. E. Horne.”

J. C. McLaughlin testified: “ Knew Burrell Horne since 1865. Since that time he was insane until he died, in 1884. Character of J. J. Billingsley good.”

Defendants also introduced deed from Burrell and W. E. Horne to Joel Gaddy, dated 27th January, 1846, conveying five acres alleged to bo a part of the land purchased by William at the Sheriff’s sale.

In reply plaintiffs introduced a mortgage deed from Bur-rell Horne to W. E. Horne, dated 13th May, 1843, conveying the crops to be grown on the land on which Burrell lived to secure a loan of $250 from William E.

There was evidence that the land mentioned in this deed is locus in quo.

Defendant objected to this deed because it only conveyed personaLproperty, and because there was no allegation in the pleadings that made it competent.

Objection overruled, and exception by defendants.

*469W. L. White proved handwriting of Sheriff .Joseph White, and two receipts of Sheriff White were introduced, reading as follows:

“ Received of William Horne one hundred and seventy-four dollars and fifteen cents in part of the purchase of Bur-rell Horne’s land, and in full of the balance of a fi. fa. in my hands, Ii. B. Hammond v. said B. Home, and a judgment. in favor of .John B. Cottrell. This 10th of March, 1841. (Signed) J. White, Sheriff.”

Above is the date of the sale of the land.

“ 173.77.

“ Received of William Horne seventy-three dollars and seventy-seven cents, in part payment for the sale of Burrell Horne’s land, sold at March Court last. 30th May, 1841.

(Signed) J. White, Sheriff.”

He further testified that Dilse)r Horne, an old negro woman, is very ignorant and feeble-minded, but her character is good.

F. A. Clarke proved handwriting of Y. H. Allen, and receipt was introduced by him as follows:

“Received of J. White, Sheriff, fifty-two dollars sixty cents, paid to me by said White for William Horne on account Burrell Horne’s land. Sold this Court, 14th March, 1841. Y. H. AlleN.”

J. D. Horne testified that the father of W. E. and Bur-rell Home died in 1842.

Bill of sale from Burrell Horne to W. E. Horne for Dilsey Home, the witness, was introduced, dated January 3, 1843.

To this defendant excepted.

*470Tho Court directed the jury to answer the first and fourth issues “No,” and instructed the jury to assess the damages for plaintiffs.

To tho instruction of the Court to answer the first issue in the negative the defendants excepted. After verdict and judgment for the plaintiffs the defendants appealed.

Mr. J. A. Lockhart, for plaintiffs.

Mr. E. C. Smith, for defendants.

Shei’herd, C. J.:

The plaintiffs claim the land in controversy under William E. Horne, who acquired the legal title by virtue of his purchase at a sale under execution against Burrell Horne in March, 1841, the Sheriff having executed a deed on the 21st of January, 1843. The defendants, who are the heirs at law of the said Burrell Horne, allege that the said William E. Horne purchased the land in trust for their ancestor, and that the terms of the trust having been complied with they are the equitable owners of and entitled to remain in possession of the same.

We think there was no error in the rejection of the issues tendered by defendants, and that in no view of the case could they have been prejudiced by those submitted b3r the Court. The issue involving the existence of the trust' is in entire conformity with the answer and sufficiently broad to comprehend an agreement made either directly with Burrell Horne or with his father acting in his behalf. As to any parol agreement, made after the sale, to convey to Burrell Home, it is clear that it would be void under the statute of frauds, and the issue tending to establish the same was immaterial and properly refused. Even had there been error in respect to the issues, it would be no ground for a new trial, as we are of the opinion that his Honor was correct in holding that there was no sufficient *471evidence to establish the alleged trust. In order to establish a parol trust, in a case like the present, the proof must not only be strong and convincing (McNair v. Pope, 100 N. C., 404), but it must also disclose an agreement amounting to a trust existing at the time of the sale.

"Without entering into a discussion of the testimony we will state our conclusion that we can find nothing which brings the ease within the foregoing principle. There is an entire absence of direct testimony tending to show any agreement whatever with Burrell before tlie sale, and the conversation with the father of Burrell after tlie sale very clearly fails to disclose the existence of any such agreement made with him in behalf of his said son. The manner in which tlie parties dealt with the land, taking the most favorable view for the defendants, is not inconsistent with an agreement made subsequently to tlie sale and similar in terms to that offered to tlie father, which was that he, the father, should take the Sheriff's deed and pay tlie said "William liis money.

In view of this defect in their case tlie counsel for the defendants advanced tlie position that the land having been purchased by William, the brother of Burrell, and the latter being insane, a trust grow out of the relationship of the parties. The case of Huguenin v. Basely, cited by counsel (2 White & Tudor L. C. Eq., 1156), does not sustain the contention, as there is no evidence of any dealing between the brothers in reference to the sale of the laud by the Sheriff, and there is no suggestion of fraud or undue influence, even had it been shown that tlie re was any such dealing. The relationship existing between brothers is not in itself a confidential relation to which the equitable doctrine of constructive trusts is applicable, and in the absence of circumstances tending to show that William actually occupied a position of trust to his brother or took a fraudulent *472advantage of his infirmity, we can see no reason why he should not be permitted to purchase his land at an execution sale as well as any other person. It may also be noted that there is no testimony showing that Burrell was insane at the time of the sale in 1841, the only positive testimony upon the subject being that ho was insane after 1865.

As to the statute of limitations, it is sufficient to say that, having failed to establish the alleged trust or to show any other title, the defendants and their ancestor must be deemed to have occupied the land as tenants at sufferance, in which case their possession is not considered as adverse to William E. Horne, the purchaser at the execution sale, or those, who claim under him. Hardy v. Simpson, Busbee, 325; Spencer v. Weatherly, 1 Jones, 327.

We have, carefully considered all of the other exceptions of the defendants and are of the opinion that they cannot be sustained. The judgment is Affirmed.