#### CHARLES F. VAIL v. MAGGIE STONE and C. F. STONE.

(Filed 16 December, 1942.)

1. Appeal and Error § 19—

Where the record does not show the organization of the court below or the authority of the special judge who signed the judgment, or disclose that the judgment was entered at term, the appeal is dismissed under Rule 19 of this Court.

2. Trusts §§ lb, 7, 15—

Where a complaint alleges that defendant, mother of plaintiff, when plaintiff was a minor, deposited in bank money belonging to plaintiff and *432afterwards bought a lot therewith, taking title in her. own name but explaining to plaintiff that she held the lot for him and would, as soon as he reached his majority, convey same to him and that, shortly after plaintiff became of age he built a house on said lot, has paid the taxes since, and had no notice of any disavowal of the trust until very shortly before filing complaint. Held: (1) A demurrer ore terms was properly overruled, both an express trust and a resulting trust being alleged; (2) and motion for judgment on the pleading is without merit, the only material admission in the answer being that plaintiff has been in possession for some time, exercising the incidents of ownership; and (3) motion for trial on plea of statute of limitations, before trial on merits, was properly denied.

Appeal by defendants from Olive, Special Judge, at August Term, 1942, of G-uileoed.

Affirmed.

Civil action to bave plaintiff adjudged the beneficial owner of certain real property, title to which is now vested in the feme defendant and to. compel conveyance thereof.

This action was instituted in the municipal court of High Point. 'When the cause came on for trial the defendants demurred ore tenus to the complaint for that it does not state a cause of action. The demurrer was overruled and the defendants excepted. They then moved for judgment on the pleadings. The motion was overruled and the defendants excepted. Thereupon, they moved for a trial on the issue raised by the plea of the state of limitations before a trial on the merits. Motion was overruled and defendants excepted.

Upon appeal to the Superior Court each exception of the defendants was overruled, the judgment of the municipal court was sustained and the cause was remanded for trial. The defendants excepted and appealed.

Walser & Wright for appellants.

Byron Haworth for appellee.

Barnhill, J.

The record here does not show either the organization of the court below or the authority of the special judge who signed the judgment. Nor does it disclose that the judgment was entered at term. The appeal is, therefore, dismissable under Rule 19 of this Court. Brown v. Johnson, 207 N. C., 801, 198 S. E., 570. Even so, we have considered the assignments of error presented.

The complaint alleges:

> “3. The defendant, Maggie Stone, is the mother of the plaintiff, Charles E. Yail, and C. F. Stone is the husband of Maggie Stone. About twenty years ago while the plaintiff was a minor under the age of' twenty-one years, he saved up money given to him by relatives and friends. When the amount of the savings reached One Hundred Dollars. *433tbe defendant, Maggie Stone, deposited said sum in a bank in ber name in trust for tbe plaintiff. Shortly thereafter, on September 15, 1926, tbe defendant, Maggie Stone, bought a lot, 50 ft. by 200 ft., on tbe Fairfield Road, being Lot No. 6 of tbe Rufus King property as recorded in Plat Book 1, Page 9 in tbe office of tbe Register of Deeds of Guilford County, North Carolina. Tbe said lot was purchased with tbe money deposited in tbe bank in tbe name of Maggie Stone, being in trust for tbe plaintiff, Charles F. Tail. Tbe defendant, Maggie Stone, explained to tbe plaintiff that she was purchasing tbe said lot for tbe plaintiff, and that as soon as be reached bis majority she would convey said lot to him in fee simple; that tbe plaintiff became 21 years of age October 4, 1931.”

It further alleges that tbe plaintiff entered into actual possession of tbe premises in 1934, shortly after reaching bis majority; that be built a bouse thereon; that be has paid all taxes and has remained in possession since said date, and that be bad no notice of any disavowal of tbe trust created by tbe purchase until recently when tbe defendant O. F. Stone, husband of tbe defendant Maggie Stone, notified him that defendants not only declined to make deed but were then seeking a loan on said premises for their own benefit.

Tbe allegations made are sufficient to repel a demurrer. Plaintiff expressly asserts a trust created by contract. Only tbe plaintiff may take advantage of bis infancy. If be is able to offer evidence to sustain tbe allegations made be will then be entitled to a judgment declaring tbe trust and requiring a conveyance accordingly.

If we disregard tbe allegation of contract, even then there is allegation that money belonging to tbe plaintiff was knowingly used by tbe feme defendant in tbe purchase of real estate, title to which she took in ber oavii name. She agreed to bold title for plaintiff’s benefit. These facts, if established, create a resulting trust. Teachey v. Gurley, 214 N. C., 288, 199 S. E., 83.

Tbe motion of defendants for judgment on tbe pleadings is without merit. Tbe only material admissions contained in tbe answer are to the effect that plaintiff has been in possession of said premises for some time, collecting the rents therefrom and exercising all tbe incidents of ownership thereof. Certainly then tbe facts admitted do not entitle tbe defendants to a judgment.

As to tbe third assignment of error tbe appeal is clearly fragmentary and premature. Even so, it is without merit. Except in case of reference, a defendant is not entitled to a trial on tbe issue raised by a plea iu bar independent of and prior to tbe trial upon tbe merits. Such is. not in accord with tbe general practice in our courts.

Tbe judgment below is

Affirmed.