{ "id": 8611775, "name": "ILA MAE RHODES; CLIFFORD RAXTER and Wife, SUSIE RAXTER, AZILEE RAY and Husband, CARL RAY, v. FAYETTE RAXTER and Wife, FLOSSIE RAXTER", "name_abbreviation": "Rhodes v. Raxter", "decision_date": "1955-05-04", "docket_number": "", "first_page": "206", "last_page": "210", "citations": [ { "type": "official", "cite": "242 N.C. 206" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "86 S.E. 2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614610 ], "opinion_index": 0, "case_paths": [ "/nc/241/0576-01" ] }, { "cite": "221 N.C. 544", "category": "reporters:state", "reporter": "N.C.", "pin_cites": [ { "page": "563" } ], "opinion_index": 0 }, { "cite": "72 S.E. 2d 757", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 369", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625748 ], "opinion_index": 0, "case_paths": [ "/nc/236/0369-01" ] }, { "cite": "69 S.E. 2d 716", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "235 N.C. 237", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622722 ], "opinion_index": 0, "case_paths": [ "/nc/235/0237-01" ] }, { "cite": "85 S.E. 2d 904", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 521", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613199 ], "opinion_index": 0, "case_paths": [ "/nc/241/0521-01" ] }, { "cite": "179 S.E. 329", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "208 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8598241 ], "opinion_index": 0, "case_paths": [ "/nc/208/0174-01" ] }, { "cite": "176 S.E. 261", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "207 N.C. 147", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623403 ], "opinion_index": 0, "case_paths": [ "/nc/207/0147-01" ] }, { "cite": "97 S.E. 476", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "176 N.C. 545", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656794 ], "opinion_index": 0, "case_paths": [ "/nc/176/0545-01" ] }, { "cite": "79 S.E. 2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "239 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626244 ], "opinion_index": 0, "case_paths": [ "/nc/239/0198-01" ] }, { "cite": "33 S.E. 2d 753", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "225 N.C. 178", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8602488 ], "opinion_index": 0, "case_paths": [ "/nc/225/0178-01" ] }, { "cite": "23 S.E. 2d 318", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "222 N.C. 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630521 ], "opinion_index": 0, "case_paths": [ "/nc/222/0393-01" ] }, { "cite": "17 S.E. 159", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "112 N.C. 463", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651326 ], "opinion_index": 0, "case_paths": [ "/nc/112/0463-01" ] }, { "cite": "23 S.E. 241", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "117 N.C. 245", "category": "reporters:state", "reporter": "N.C.", "pin_cites": [ { "page": "247" } ], "opinion_index": 0 }, { "cite": "66 N.C. 466", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277665 ], "opinion_index": 0, "case_paths": [ "/nc/66/0466-01" ] }, { "cite": "34 L. Ed. 1091", "category": "reporters:federal", "reporter": "L. Ed.", "case_ids": [ 3549515 ], "opinion_index": 0, "case_paths": [ "/us/138/0587-01" ] }, { "cite": "42 A.L.R. 10", "category": "reporters:specialty", "reporter": "A.L.R.", "pin_cites": [ { "page": "54" } ], "opinion_index": 0 }, { "cite": "84 S.E. 2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 11", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600024 ], "opinion_index": 0, "case_paths": [ "/nc/241/0011-01" ] }, { "cite": "71 S.E. 59", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "155 N.C. 145", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651890 ], "opinion_index": 0, "case_paths": [ "/nc/155/0145-01" ] }, { "cite": "21 L. Ed. 570", "category": "reporters:federal", "reporter": "L. Ed.", "case_ids": [ 62501 ], "opinion_index": 0, "case_paths": [ "/us/84/0044-01" ] }, { "cite": "13 S.E. 112", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "108 N.C. 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650584 ], "opinion_index": 0, "case_paths": [ "/nc/108/0276-01" ] } ], "analysis": { "cardinality": 624, "char_count": 12482, "ocr_confidence": 0.58, "pagerank": { "raw": 4.5518797618462264e-07, "percentile": 0.924520116809899 }, "sha256": "ef52cb33335d826d81ca543d8958373323afe7d4b0f99142f33fe45b534cbdb2", "simhash": "1:8d77f43074bef0cf", "word_count": 2161 }, "last_updated": "2023-07-14T17:51:17.837681+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BaRNHIll, C. J., and DeviN, J., took no part in the consideration or decision of this case." ], "parties": [ "ILA MAE RHODES; CLIFFORD RAXTER and Wife, SUSIE RAXTER, AZILEE RAY and Husband, CARL RAY, v. FAYETTE RAXTER and Wife, FLOSSIE RAXTER." ], "opinions": [ { "text": "JOHNSON, J.\nThis proceeding was instituted as a petition for partition of land among tenants in common.\nThe record title was held as an estate by the entirety by J. H. Raxter and wife, Sarah Raxter, both of whom died intestate prior to the commencement of this proceeding, Sarah Raxter having died last. She was survived by the following named children, her only heirs at law: Ila Mae Rhodes, Clifford Raxter, Azilee Ray, and Fayette Raxter.\nThe plaintiffs, upon allegations that each of the four children owns a one-fourth interest in the land, pray the court for actual partition.\nThe defendants deny that the shares of the four owners are equal, and by further defense allege that by virtue of a resulting trust or a parol trust, or both, the defendant Fayette Raxter owns, in addition to the share to which he is entitled by inheritance, an interest in the land to the extent of about one-third its value.\nAfter the proceeding was instituted, Clifford Raxter and wife conveyed whatever interest they had in the lands to Fayette Raxter.\nAt the close of the evidence in the trial below, the defendant Fayette Raxter\u2019s trust pleas were disposed of by involuntary nonsuit.\nThe verdict of the jury established and the judgment below decrees that the plaintiffs Ila Mae Rhodes and Azilee Ray each owns a one-fourth undivided interest in the land, and that the defendant Fayette Raxter owns the remaining one-half undivided interest.\nDecision here turns on whether the evidence adduced below is sufficient to raise a trust in favor of the defendant Fayette Raxter. The evidence discloses that about 1912 J. H. Raxter and wife, Sarah Raxter, purchased and took title to a tract of land known as the Clark place. It was paid for on the installment plan. During the early 1920\u2019s this tract was sold, and the proceeds were applied as part payment of the purchase price of the 45-acre Elzie Raxter place now in controversy. The deferred balance due on the purchase price was paid in installments over a period of years. Fayette Raxter made contributions to his parents from time to time to assist them in paying for both tracts of land. However, the evidence fails to disclose that he advanced any definite fractional portion of the purchase money, for any distinct interest in the land, when each tract was purchased. On the contrary, the evidence discloses that Fayette Raxter simply made general contributions, as for example of from $10 to $50 each, toward the purchase of the lands. Moreover, the evidence which fixes with any degree of certainty the time relationship between the contributions made by Fayette Raxter and the acquisition of title by his parents indicates that practically all the contributions were made after title passed for the purpose of assisting in paying installments due on the deferred balance of the purchase price. In this state of the record, with the evidence being insufficient to afford a basis for determining what proportionate part, if any, of the purchase money was advanced by Fayette Raxter at or before the time legal title passed to his parents, the court below properly concluded there was no evidential basis for establishing in favor of Fayette Raxter any ascertainable trust interest in either tract of land based on pro tanto payment of the purchase money. It is elemental that a resulting trust arises, if at all, in the same transaction in which the legal title passes, and by virtue of consideration advanced before or at the time the legal title passes, and not from consideration thereafter paid. Beam v. Bridgers, 108 N.C. 276, 13 S.E. 112; 54 Am. Jur., Trusts, section 204. See also Olcott v. Bynum, 84 U.S. (17 Wall.) 44, 21 L. Ed. 570; McWhirter v. McWhirter, 155 N.C. 145, 71 S.E. 59; Bowen v. Darden, 241 N.C. 11, 84 S.E. 2d 289; 54 Am. Jur., Trusts, section 216; Annotation, 42 A.L.R. 10, 54; Annotation, 34 L. Ed. 1091.\nEqually untenable is the defendant Fayette Raxter\u2019s alternate contention that he is entitled to a portion of the land in fee-simple by virtue of a parol agreement with his parents. As to this, it is alleged, and his evidence tends to show, that J. H. Raxter and wife, Sarah Raxter, entered into a verbal agreement with Fayette Raxter by which the latter was to have a designated portion of the 45-acre tract which would include the dwelling house, barn, and other improvements he assisted in placing on the land. However, it is noted that the defendants\u2019 pleading, as well as their proofs, fix the time of the alleged parol agreement as being after the legal title to the land passed to J. H. Raxter and wife, Sarah Raxter. This being so, the alleged agreement was ineffectual to raise a trust. Ordinarily, in order to raise a trust in land the parol agreement relied on must be made prior to or contemporaneously with the passing of the legal title. Frey v. Ramsour, 66 N.C. 466; Mordecai\u2019s Law Lectures, Second Edition, Vol. II, pp. 991 and 992. The rule is that \u201cwhere the legal estate is not conveyed, a trust cannot be raised by a parol declaration even though founded upon a valuable consideration and followed by actual occupancy and the erection of valuable improvements.\u201d Cobb v. Edwards, 117 N.C. 245, 247, 23 S.E. 241. See also Hamilton v. Buchanan, 112 N.C. 463, 17 S.E. 159; Taylor v. Addington, 222 N.C. 393, 23 S.E. 2d 318; McCorkle v. Beatty, 225 N.C. 178, 33 S.E. 2d 753; G.S. 22-2.\nIt necessarily follows that the evidence was insufficient to raise a trust in favor of the defendant Fayette Raxter, upon either the theory of a resulting trust or of a parol trust. These pleas were properly dismissed on plaintiffs\u2019 demurrer to the evidence.\nAlso untenable are the defendants\u2019 assignments of error relating to the exclusion of evidence. Within this group the defendants have brought forward more than thirty exceptions. Practically all these are without merit for the reason the record fails to show what the testimony would have been if the witnesses had been permitted to answer the questions propounded. The rule is that the exclusion of testimony cannot be held prejudicial on appeal unless the appellant shows what the witness would have testified if permitted to do so. Peek v. Trust Co., ante, 1; Highway Commission v. Black, 239 N.C. 198, 79 S.E. 2d 778.\nException No. 26 relates to the ruling of the court in striking out the testimony of the witness Jobe Hamet to the effect that J. H. Raxter and wife told him that \u201cFayette Raxter paid a part of the purchase price\u201d of the land, and that the witness \u201csaw him pay J. H. Raxter money to pay on it.\u201d The exclusion of this testimony was not prejudicial to the defendants since it was not made to appear that the \u201cpart of the purchase price\u201d paid by Fayette Raxter was contributed prior to or contemporaneously with the passing of the legal title. Indeed, the further testimony of the witness Hamet tends to show that the contribution referred to was made after the legal title passed, the further statement of the witness being: \u201cWhen I saw him pay Mr. Raxter money, Mr. Raxter told me that it was to make a payment on the land \u2014 what they lacked of having it paid for.\u201d\nThe remaining exceptions brought forward in the brief have been examined and found to be without merit. Included among these are Exceptions Nos. 71 and 72 which challenge the peremptory instructions given the jury in favor of the plaintiffs. After the defendants\u2019 trust pleas were disposed of by nonsuit, the single issue to be determined by the jury, under the theory of the trial, was whether the plaintiffs Ila Mae Rhodes and Azilee Ray and the defendant Fayette Raxter were the owners of the land as tenants in common. All the relevant evidence bearing on this issue pointed to an affirmative answer. There was no evidence contra. Hence, a peremptory instruction in favor of the plaintiffs was proper. The rule is that where all the evidence points in the same direction, with but one inference to be drawn from it, an instruction to find in support of such inference if the evidence is found to be true, is proper and will be upheld. Mercantile Co. v. Ins. Co., 176 N.C. 545, 97 S.E. 476; Holt v. Maddox, 207 N.C. 147, 176 S.E. 261; Davis v. Warren, 208 N.C. 174, 179 S.E. 329. The instruction to which Exception No. 71 relates is as follows: \u201c. . . if you believe the facts to be as testified to by the witnesses in the case, and the other evidence and testimony, you will answer the issue YES; otherwise you will answer it NO.\u201d (Italics added.) After some time had elapsed, the presiding Judge recalled the jury to the court room and gave a further instruction. Exception No. 72 relates to the further instruction. It is substantially the same as the first one, with this exception: the portion of the first instruction shown in italics above was omitted from the second instruction. While this omission may be technically inexact under the rule applied in Reynolds v. Earley, 241 N.C. 521, 85 S.E. 2d 904, the instruction as given may not be held for error on this record. Compare Commercial Solvents v. Johnson, 235 N.C. 237, and cases cited on page 243, 69 S.E. 2d 716. See also Shelby v. Lackey, 236 N.C. 369, 72 S.E. 2d 757. Here prejudice.has not been made to appear. Indeed, the instruction is not challenged as to form. Moreover, the exceptions relating to the peremptory instructions as brought forward in the brief are unsupported by argument or citation of authority. Therefore, both exceptions may be treated as abandoned under Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 544, 563; S. v. Cole, 241 N.C. 576, 86 S.E. 2d 203.\nIt is noted that in the oral argument here the appellants abandoned their contention that the court below erred in ordering actual partition, rather than a sale therefor.\nThe tidal and judgment below will be upheld.\nNo error.\nBaRNHIll, C. J., and DeviN, J., took no part in the consideration or decision of this case.", "type": "majority", "author": "JOHNSON, J." } ], "attorneys": [ "Ramsey & Hill for plaintiffs, appellees.", "Lewis P. Hamlin, Jr., and Thomas R. Eller, Jr., for defendants, appellants." ], "corrections": "", "head_matter": "ILA MAE RHODES; CLIFFORD RAXTER and Wife, SUSIE RAXTER, AZILEE RAY and Husband, CARL RAY, v. FAYETTE RAXTER and Wife, FLOSSIE RAXTER.\n(Filed 4 May, 1955.)\n1. Trusts \u00a7 4a\u2014\nWhere defendants\u2019 evidence is insufficient to show what part, if any, of the purchase price he advanced at or before the time legal title passed to the alleged trustee, the evidence is insufficient to establish a resulting trust in defendants\u2019 favor, since consideration advanced after the passing of the legal title is ineffectual to create a resulting trust.\n2. Trusts \u00a7 2a\u2014\nAllegation and proof to the effect that after his parents acquired legal title to the premises, they entered into a verbal agreement with defendant under which defendant was to have that portion of the land which would include the dwelling house, barn and other improvements which defendant assisted in placing on the land, held insufficient to establish a parol trust in defendant\u2019s favor, since an agreement relied upon to create a parol trust must ordinarily be made prior to, or contemporaneously with, the passing of the legal title.\n3. Appeal and Error \u00a7 39e\u2014\nWhere the record fails to show what the testimony excluded would have been if the witness had been permitted to answer the questions propounded, the exclusion of the testimony cannot be held prejudicial.\n4. Trusts \u00a7 4c\u2014\nUpon the issue of a resulting trust, evidence of the furnishing of consideration after legal title had passed to the alleged trustee, is properly excluded, since such evidence is irrelevant to the issue.\n5. Trial \u00a7 29\u2014\nWhere all the evidence points in the same direction with but one inference to be drawn from it, a peremptory instruction to answer the issue accordingly if the evidence is found to be true, is proper and will be upheld.\n6. Trial \u00a7 28\u2014\nA peremptory instruction that if the jury believes the facts to be as all the evidence tends to show, to answer the issue in the affirmative, will not be held for prejudicial error, certainly when tbe court in giving tbe peremptory instruction in another part of tbe charge, adds that if tbe jury does not so find, to answer tbe issue in tbe negative.\n6. Appeal and Error \u00a7 29\u2014\nExceptions not brought forward in tbe brief and supported by argument or citation of authority are deemed abandoned.\nBaknhill, C. J., and Devin, J., took no part in the consideration or decision of this case.\nAppeal by defendants from Nettles, J., and a jury, at July-August Term, 1954, of Tkansylvania.\nRamsey & Hill for plaintiffs, appellees.\nLewis P. Hamlin, Jr., and Thomas R. Eller, Jr., for defendants, appellants." }, "file_name": "0206-01", "first_page_order": 248, "last_page_order": 252 }