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SYKES v. BOONE.

It is true the defendant had by procuring possession of the bond for title induced the owner to convey to him, but in this case the plaintiff obtained the deed and conveyance of the legal title by a promise to hold in trust for Miss Boone, to whom Winborne had previously promised the refusal of the land or an option to buy it. Though there may be a slight distinction between the two cases, we see no legal difference.

"But the language of this Court in the case of Cousins v. Wall, 56 N. C., 45, is conclusive against the plaintiff. In that case the owner of the land was under a contract to convey to the plaintiff the land in controversy and, instead of doing so, he conveyed it to the defendant, who paid the purchase money out of his own funds, but at the time of the execution of the deed he agreed to convey to the plaintiff upon payment of the amount of the purchase money.

In commenting upon these facts and after referring approvingly to the case of Cloninger v. Summit, supra, Battle, J., for the Court, says: "By paying his money and taking the legal title to himself, defendant held the legal title in trust to secure the repayment of the purchase money, and then in trust for the plaintiff. The defendant never contracted to sell or convey the land, or any interest therein, to plaintiff; for, at the time of the agreement, he had no title or interest in the land, and it was only by the force of the agreement that he was permitted to take the legal title, and by the same act he took it in trust for the plaintiff. It is manifest that the statute of frauds does not apply."

In Dennison v. Goehring, 7 Penn., 175; 47 Am. Dec., 505, the conveyance had been made to a person who himself paid the purchase money, but the parol trust was declared for another, who happened, it is true, to be the child of the bargainor. It was held that the trust, though voluntary, was valid and enforcible in equity. The fact that the beneficiary was the child of the bargainor was not at all controlling in

SYKES v. BOONE.

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the decision of the case, but the reason of the decision was that the trust, having been declared at the time the legal title passed, and being therefore, an executed or perfected trust, as distinguished from an executory trust, or one arising out of an executory agreement, the court would enforce it even in favor of a volunteer, or without any consideration moving from the beneficiary to support it. In that case, Gibson, C. J., says: "The books are full of decrees in favor of children and volunteers When the legal estate has passed by a conveyance in which a trust is distinctly declared, the trustee will not be allowed to set up want of consideration to defeat it. James v. Morey, 2 Cowen (N. Y.), 246; 14 Am. Dec., 506, 507.”

It is true that all trusts are in a certain sense executory, that is, the beneficiary is under the necessity of coming into the court and invoking its equitable jurisdiction for the enforcement of the trust, and for this reason Lord Hardwick at one time declared that there was no such distinction as that asserted between executed and executory trusts; but from this position he was forced afterwards to recede and he finally abandoned it. Excel v. Wallace, 2 Vesey, Sr., 318; Bastard v. Proby, 2 Cox, 8. And now it is held that there never was a time when there was not a substantial difference between executed and executory trusts in this respect, that is, that one is good in favor of a volunteer and the other is not. An executed trust, therefore if declared at the time the legal estate passes under the deed, will be enforced even without a consideration. Ellison v. Ellison, 6 Vesey, 656; White & Tudor's L. C., (4 Am. Ed.), 382; Adams Eq., 79; Read v. Long, 4 Yerger, 68; Wyche v. Green, 16 Ga., 49; Fletcher v. Fletcher, 4 Hare, 73.

In Pittman v. Pittman, 107 N. C., 163; 11 L. R. A., 456, Shepherd, C. J., gives a very full and accurate statement of the law with reference to such trusts. He says: "Trusts and

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SYKES v. BOONE.

uses were raised in the same manner, and if a feoffment was made without consideration, a use resulted to the feoffor, unless the use or trust was declared at the time of the conveyance. Now, it must be observed that no consideration was necessary to a feoffment. The conveyance itself raised the use and separated it from the legal estate. The use so raised would, however, as we have said, in the absence of a consideration, result to the feoffor, unless declared at the time of the feoffment, and this declaration might be voluntarily made by parol, either in favor of the feoffee or a third person. But there was a great difference in this respect between a conveyance which operated by transmitting the possession, and the covenant to stand seized, which had no operation but by the creation of a new use; and as this use was raised by equity, and equity never acts without a consideration, a consideration was always necessary to the transfer of the interest by this conveyance; whereas, in the case of a feoffment or fine, the use arises upon the conveyance itself. It seems therefore that at common law, only the solemn conveyance, by livery or record, could raise the use by its own virtue, and dispense with the deed declaring it, as well as the consideration for raising it. Roberts on Fraud, 92. It appears then that at common law no use or trust can be raised in lands without a consideration, except in the single instance of a conveyance operating by transmutation of possession the character of the conveyance alone being sufficient. to raise the use, and to dispense with the necessity for a consideration."

When the principles thus laid down by this court are applied to the facts of this case, we do not see why the promise made by the plaintiff to Winborne in behalf of the defendant, at the time the legal title passed to him, was not a valid and enforcible trust. No good reason has been suggested to us

SYKES V. BOONE.

why this case should be excepted from the operation of the principles usually applicable to cases of its kind.

We do not think that the decision in King v. Kincey, 36 N. C., 187; 36 Am. Dec., 40, militates against the views we have expressed. The agreement, there, was made at the time of receiving the deed and was purely voluntary. The deed was not procured by reason of the promise; indeed, a reconveyance was not contemplated by the parties at the time the deed was executed. Besides, the plaintiff had two years within which to redeem the land and failed to avail himself of the offer of the defendant and the relief seems to have been denied upon that ground.

The assignment of error as to the ruling of the court upon the admissibility of testimony and the refusal to give the plaintiff's first and seventh prayers for instructions involve the same question as the one we have already discussed, and cannot therefore be sustained. We understand that the instruction requested in the plaintiff's fifth prayer was given by the court, or it was at least substantially given to the jury, and that was sufficient.

The sixth prayer was properly refused. The question was whether the trust had been declared at the time the legal title passed to the plaintiff. The promise could have become a part of the consideration even after the terms of the purchase had been agreed upon. It was a superadded consideration, and the jury found, under proper instructions from the court, it was part of the consideration and inducement for making the deed.

We conclude upon a review of all of the authorities that there was a valid trust declared, at the time of the conveyance of the legal estate from Miss Vaughan, in favor of the defendant and she is entitled to have the same enforced by the conveyance to her of the legal title.

The parol trust is enforcible not in the court of honor

SYKES v. BOONE.

alone, as the plaintiff's counsel contended, but in the forum of conscience where right and equity åre administered in accordance with those well established principles which have been found to be best calculated to do justice between the parties, and to compel by legal methods and procedure the fulfillment of solemn engagements.

We believe that the result reached in this case is not only just, but that any other interpretation of the facts of the case, with reference to their legal character and efficacy, would be in contravention rather than in fulfillment of the provisions of the statute, for it has been well said that it is not easy to see how such a trust could be established except by parol evidence, and that if such evidence were not competent "a statute made to prevent frauds would become a most potent instrument whereby to give them success." Bispham Equity, Sec. 95.

The questions as to the tender of the purchase money by the defendant before the suit was brought and as to the costs in the case, have both been settled against the plaintiff. Cotton Mills v. Abernathy, 115 N. C., 402; Martin v. Bank, 131 N. C., 121. There is no error in the rulings and judgment of the court below.

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Per Curiam. Judgment Affirmed.

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