#### COBB v. PERRY.

(October 23, 1900.)

Trusts — Sufficiency of Evidence to Establish — Trustee.

There being more than a scintilla of evidence that the defendant held certain property as trustee, that question should have been submitted to the jury.

Civil Actiost by Maud P. Cobb against O. H. Perry, II. II. Perry and Caroline Eo'y, heard by Judge E. B. Starbucle, at Spring Term, 1900, of Grayest Superior Court. Upon intimation by the Court that plaintiff and defendants other than O. H. Perry were not entitled to recover, the plaintiff and defendants other than O. H. Perry submitted to a non-suit and appealed.

W. D. Mclver, for the plaintiff, and defendants other than O. II. Perry.

Simmons, Bou & Ward, for O. H. Perry.

Faircloth, O.

J. The plaintiff sues to have the defendant, O. H. Perry, declared a trustee for the benefit of herself and other children of G. W. Perry and wife S. B. Perry. On February 3, 1877, G. W. Perry and wife conveyed a tract of land by deed to A. W. Wood, and on February 10, 1877, said Wood conveyed the same land to defendant, O. H. Perry; and it is alleged that the agreement was that the defendant should hold the land, pay off an incumbrance thereon, and then divide the land among the children. It is alleged that there was no other consideration in either deed. At the conclusion of the evidence his Honor was of opinion that plaintiff could not recover. A nonsuit and appeal was taken.

The only question for this Court to consider is whether *79tbe ease should have been submitted to tbe jury, and «that depends on tbe evidence. We will refer to only a part of tbe evidence. Tbe plaintiff testified that sbe beard a conversation between tbe defendant and tbe mother on tbe day tbe deed was signed, after tbe father bad signed, when “Q. Id. Perry asked her (tbe mother) if sbe could not trust him, and said that be did not want tbe property to cheat tbe other children out of it; that be was willing to do what was right.” J. Oliver Poy testified: “The day tbe first deed was made, and before deeds were made, I came to Mr. Simmons’ office, and found him writing a deed. O. Id. Perry was there. I told 0. Id. Perry bis father bad said not to have tbe deed written; that be would not sign it. Mr. Simmons said, ‘Well, who is to pay for it V 0. Id. Perry said be would pay for it, and told Simmons to go ahead and write it. I returned to Mr. Gr. W. Perry’s home about 12 o’clock. About 1 o’clock p. m., O. H. Perry came in with J. E. West, Clerk Superior Court, into tbe room where G. W. Perry was, and bad deed with him. I was present. G. W. Perry said to O.vH. Perry, ‘Didn’t Bob (referring to witness) tell yon I wouldn’t sign tbe deed ?’ O. H. Perry said be could see no reason why G. W. Perry hesitated about signing tbe deed, and went into an adjoining room with 0. Id. Perry, and perhaps bis daughter. He signed tbe deed in the adjoining room, and I was not present. Tbe day after the deed was signed by G. W. Perry, but before Mrs. S. B. Perry signed it, I heard a conversation between 0. H. Perry and her. I asked her in presence of Oliver not to sign tbe deed; told her sbe bad a dower interest in it, and insisted on her not signing it; told her it would not interfere with Oliver’s attending to tbe estate as bis father wished, and that by not signing it sbe would retain her dower interest. Don’t recall that Oliver said anything. Am positive be did not say be was not taking *80it in trust. After tbe deeds had been executed, Oliver often stated to me that it was his purpose to settle ' off the incumbrances upon the land, and divide the property, as his father wished. Gf. W. Perry was in bad health at the time deed was made; was confined to his bed, and died a few weeks afterwards. He was financially embarrassed.” Miss ICoonce said that she talked with O. H. Perry several times, and he said he meant to do right by the children. Mrs. Clara Foy testified for plaintiff and herself as follows: “On the day before the day the deed was signed by father, I had a conversation with O. H. Perry. He told me to use my influence with father to get him to make a deed for the plantation, and, as soon as he should get the deed, he would give me a right for my interest. After the deed was written, but before it was signed, Oliver came into the room where my father was, and said, ‘I have the deed and check written by Mr. Henderson for $1,000, and Mr. Simmons said that will do just as well.’ My father then said he would not sign the deed. ‘You haven’t done what you promised to do, and I won’t sign it.’ Oliver then said, ‘Come into the room with me, and I will tell you why I didn’t stand to my promise.’ When they went into the other room, father again said, ‘I won’t sign it.’ Oliver then said, ‘If you don’t sign it, I will take what I have got and leave.’ I had gone into the other room with them. When Oliver said this, my father then signed the deed. Twelve years after this, I asked Oliver to buy me a home in Richlands. He said he had promised his father to take the property, pay the debts, and keep a home for mother,' and buy me a home, and take care of his little sister (the plaintiff), and that he intended to- do it. He said he would buy me a home, but never did.” Mrs. S. B. Perry testified: “Before I signed the deed, the defendant, Oliver, told me he did not want to hold this property to cheat the children out of.it, but must do what was *81right; that Wood was to at once make a deed to him.” The rule, so often stated, is that, when there is more than a scintilla of evidence, about which reasonable minds may differ, the evidence on the issue should be submitted to a jury. In the present case we think the evidence falls within the rule, and that the refusal to submit it to the jury was error. As the case goes back for trial, we refrain from expressing any opinion on other legal questions discussed on the argument.

Venire de novo.