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of the legislature, either in express words or by necessary implication, to make it exclusive. Even then I do not think it would be constitutional unless demanded by some public necessity.

In the case at bar the statute expressly disclaims any intention of depriving the land owner of any right he may have to an appeal or suit de novo for the purpose of ascertaining and recovering adequate compensation. He cannot recover the land because it has been lawfully condemned, but he can recover his just compensation. To say that the plaintiff cannot recover his just compensation because the land was lawfully condemned, when the city has statutory authority to condemn whatever land it sees fit, amounts to an assertion of the right to take land without compensation. From any such proposition I am compelled to dissent.


(Filed March 24, 1903.)

1. TRUSTS-Parol Trusts-Consideration.

Where a person takes a deed for property with an agreement that he will, upon the payment of a certain sum, convey the same to a third person a parol trust is created in favor of the latter.

2. FRAUDS, STATUTE OF-Trusts-Parol Trusts.

A declaration of trust by a purchaser at the time of the conveyance of the legal title to him, as a condition on which the vendor consents to convey, is not within the statute of frauds.

ACTION by W. R. Sykes against Bessie Boone and W. II.
Britton, heard by Judge George H. Brown and a jury, at
February Term, 1902, of the Superior Court of NORTHAMP-
TON County. From a judgment for the defendants, the
plaintiffs appealed.

Peebles & Harris and W. E. Daniel, for the plaintiff.
Day & Bell and Battle & Mordecai, for the defendant.

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WALKER, J. The plaintiff in this action sues for the recovery of real property. The defendant denies his right to recover the possession of the same and pleads a counterclaim, in which she alleges that she applied to Mr. B. B. Winborne, the agent of Miss Vaughan, who was the owner of the tract of land described in the complaint, for the purchase of said land, and Winborne agreed to give her an option to buy the land before he sold it to any one else.

On the 14th October, 1899, the plaintiff applied to Winborne for the purchase of the land and Winborne agreed to sell it to him at the price of $2,000.00, but before the deed was prepared and executed, Winborne notified the plaintiff of his previous promise to the defendant, and that thereupon the plaintiff promised and agreed with Winborne that, if he would let him have the land and the defendant should afterwards want it at the price of $2,000.00, he would either surrender the deed, then about to be executed, to Miss Vaughan and let her convey to the defendant, or he would himself convey directly to the defendant upon payment of $2,000.00.

There was evidence tending to show that the plaintiff had admitted this promise both before and after the execution of the deed, and there was much evidence to corroborate Winborne who testified to the making of the promise. There was also evidence tending to show that Winborne would not have prepared and delivered the deed if the promise had not been made.

The following issues were submitted to the jury:

1. Did B. B. Winborne, as agent for Rosa Vaughan, agree with the defendant Bessie Boone to give her the refusal of the purchase of the land described in the complaint, as alleged in the answer? Yes.

2. Was the deed from Rosa Vaughan to the plaintiff executed and delivered upon the understanding and agreement upon the part of plaintiff, entered into immediately before


and at time of execution of said deed, that plaintiff would convey said land to defendant Bessie Boone for $2,000.00 if she desired it? Yes.

3. Did defendant Bessie Boone decline to take said land at $2,000.00 as alleged by plaintiff? Ans. No.

4. Did said Bessie Boone decide to take said land at $2,000.00, and notify plaintiff and said Winborne within a reasonable time as alleged by the defendant? Yes.

5. Did said defendant Bessie Boone offer to pay plaintiff said $2,000.00 and interest and expenses as alleged by her? Yes.

6. What damage if any is plaintiff entitled to recover?

The court charged the jury that before they could answer the second issue "Yes," the defendant must satisfy them by strong, clear and convincing proof, more than a mere preponderance of evidence, that plaintiff's promise to convey the land to defendant was a part of the inducement moving Winborne to execute the deed, and if the jury found that the promise was the inducement for making the deed, they would answer the second issue "Yes". The court further charged that if it was Winborne's purpose and intention to sell to the plaintiff anyhow and to deliver the deed whether such promise was given or not, and it was not a trust or condition attached to the title, and not intended as such, the jury would answer the second issue "No." The court further substantially instructed the jury that, if Winborne did not exact the promise from the plaintiff as a condition precedent to the making of the deed, and Winborne did not annex any such condition or trust to the transmission of the title or the delivery of the deed, the jury should answer the second issue "No."

The jury answered the second issue "Yes" and they have thereby found as follows: That W. R. Sykes made the promise and that it was the inducement for making the deed


and was annexed at the time of preparing and executing the deed, as a condition and trust to the transmission of the legal title.

Why did not the facts thus found create a valid parol trust in favor of the plaintiff which is enforcible in a court of equity? We think they did. It is familiar learning that a trust may be created in any one of the four modes:

1. By transmission of the legal estate, when a simple declaration will raise the use or trust.

2. By a contract based upon valuable consideration, to stand seized to the use or in trust for another.

3. By covenant to stand seized to the use of or in trust for another upon good consideration.

4. When the court by its decree converts a party into a trustee on the ground of fraud. Wood v. Cherry, 73 N. C.,


A trust


The trust in this case comes within the first class, as a declaration of trust was made at the time of the execution of the deed and the conveyance of the legal estate. when so declared is not within the Statute of Frauds. man v. Pittman, 107 N. C., 159; 11 L. R. A., 456. does it require a consideration to support it. If the declaration is made at or before the legal estate passes, it will be valid even in favor of a mere volunteer. Blackburn v. Blackburn, 109 N. C., 488; Pittman v. Pittman, 107 N. C., 159; 11 L. R. A., 456.

We are unable to distinguish this case in principle from the many cases decided in this court, where purchases have been made at public or judicial sales, and the purchaser who paid the money out of his own funds agreed to hold the land subject to the right of the person, whose land he bought, to have a reconveyance of the legal title upon repayment of his outlay. In all such cases it has been held that there was a valid parol trust created in favor of the former owner of the


land. Cobb v. Edwards, 117 N. C., 244; Shields v. Whitaker, 82 N. C., 516; Mulholland v. York, 82 N. C., 510; Shelton v. Shelton, 58 N. C., 292; Owens v. Williams, 130 N. C., 165.

It is true that in some of these cases the purchaser acquired the land at an under value because he was known to be buying for the benefit of the defendant in the execution, but if it is necessary that any equitable element should be involved in order to create a valid trust, we have that element is this case, as the jury have necessarily found, under the evidence and the charge of the court, that the plaintiff obtained the deed by reason of his solemn promise and engagement to convey to the defendant upon payment of the purchase money, and that this promise was a condition precedent annexed at the time of the execution of the deed and was what induced Winborne to sell and convey to the plaintiff. It was substantially therefore a part of the consideration for the conveyance, and it would be unconscionable and against equity for the plaintiff to take advantage of the deed and to insist upon holding the legal title acquired thereunder, and refuse to perform the promise he made in order to procure the execution of the deed. The case, in this view of it, is quite as strong as those in which this court has frequently interfered in behalf of parties seeking to attach a parol trust to the legal estate and to have it enforced by a conveyance of the same.

The case of Cloninger v. Summit, 55 N. C., 513, presents a striking analogy to this case. In that case the defendant had agreed with the owner of the land, when the latter conveyed the legal title to him, that he would hold it subject to the right of a third party, to whom the owner had theretofore made a bond for title, to have a conveyance of the title upon payment of the amount specified in the bond. That was held to be a valid parol trust which the court enforced and in its essential features the case is like the one now under decision.

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