Mary Alice BRYANT
v.
Hayward KELLY, Jr., and Claretha Simmons Kelly, Linster O. Simmons and wife, Blanchie Simmons, Raymond C. Simmons and wife, Reather Simmons, Randolph Simmons and wife, Ethel Simmons, and Kadell Simmons and wife, Louise M. Simmons, Robert H. Simmons and wife, Fannie Simmons, Cleo Roosevelt Simmons, and Charlie Edward Simmons.
No. 703DC439.
Court of Appeals of North Carolina.
December 30, 1970. Certiorari Allowed March 3, 1971.*116 Brock & Gerrans by Donald P. Brock, Trenton, for plaintiff appellant.
Beaman & Kellum by Norman B. Kellum, Jr., New Bern, for defendant appellees.
Certiorari Allowed by Supreme Court March 3, 1971.
PARKER, Judge.
Motion for a directed verdict under Rule 50(a) of the Rules of Civil Procedure is proper when trial is being held before a jury. This case was tried by the judge without a jury. The appropriate motion in such case is for involuntary dismissal under Rule 41(b). Therefore, we will treat defendants' motion as a motion for an involuntary dismissal under Rule 41(b).
Rule 41(b) reads in part:
"After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this section and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a necessary party, operates as an adjudication upon the merits."
Rule 52(a) contains the following:
"In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment."
In a nonjury case, in which all issues of fact are in any event to be determined by the judge, the function of the judge on a motion to dismiss under Rule 41(b) is to evaluate the evidence without any limitations as to the inferences which the court must indulge in favor of the plaintiff's evidence on a similar motion for a directed verdict in a jury case. (See cases cited in 2B, Barron and Holtzoff, Federal Practice and Procedure, § 919, interpreting the cognate Federal Rules.) Where, as in the present case, the trial court as the trier of the facts has found the facts specially, such findings are conclusive upon appeal if supported by competent evidence, even though there may be evidence which might sustain findings to the contrary. In such case "[t]he trial judge becomes both judge and juror, and it is his duty to consider and weigh all the competent evidence before him. Hodges v. Hodges, 257 N.C. 774, 127 S.E.2d 567. He passes upon the credibility of the witnesses and the weight to be given their testimony and the reasonable inferences to be drawn therefrom. If different inferences may be drawn from the evidence, he determines which inferences shall be drawn and which shall be rejected." Knutton v. Cofield, 273 N.C. 355, 160 S.E.2d 29.
In the present case, even though defendants' motion was incorrectly designated as *117 a motion for a directed verdict, the trial judge complied with the provisions of Rule 41(b). As trier of the facts, he determined them and rendered judgment on the merits against the plaintiff. He also complied with Rule 52(a) by finding the facts specially and stating separately his conclusions of law thereon. His findings of fact are clearly supported by the evidence, and are binding upon this Court on appeal. The question before us, therefore, is whether the facts found support the conclusions of law and the judgment. We hold that they do.
In her complaint, plaintiff alleged facts which would support recovery on either of two theories: That either a parol trust or a resulting trust came into existence by reason of her dealings with her brother. To recover upon the theory of a parol trust, plaintiff must prove the existence of the alleged oral agreement with her brother, Leonard, to purchase the land and hold title for the benefit of the plaintiff, and must prove that this agreement was entered into before or at the time title passed to her brother. "One who is already the holder of the legal title to land cannot create a valid trust therein by an oral declaration that he or she will hold the land in trust for another, or by an oral promise to convey the land to another at a future date." Beasley v. Wilson, 267 N.C. 95, 147 S.E.2d 577. Here, on competent evidence, the trial judge has found that there was no binding agreement between plaintiff and her brother until plaintiff paid the sum of $250.00, and that this payment was made on 28 November 1947. The parties stipulated, and the court found, that title passed to the brother on 16 November 1946. Therefore, under the facts found and stipulated, no binding parol trust could arise.
The same is true of a resulting trust. "A resulting trust arises, if at all here, from the payment of the purchase money, and accordingly it is essential to the creation of such a trust that the money or assets furnished by or for the person claiming the benefit of the trust should enter into the purchase price of the property at or before the time of purchase." Vinson v. Smith, 259 N.C. 95, 130 S.E.2d 45. Here, on competent evidence, the trial judge has found that the $250.00 payment was made on behalf of plaintiff to her brother more than a year after he had purchased and received title to the property. On this finding, no resulting trust could arise.
In their brief on this appeal, plaintiff's counsel contend that at the time the property was conveyed to Craven County in 1942 for failure to pay taxes, the plaintiff and her brother were tenants in common. From this they argue that when Leonard purchased in 1946, his acquisition of the outstanding title inured to the benefit of his cotenant, citing Bailey v. Howell, 209 N.C. 712, 184 S.E. 476. This theory, however, is not available to plaintiff on this appeal. There was here neither allegation nor proof that plaintiff and her brother ever held title as cotenants. It was stipulated that their father owned the subject lands prior to 1942, but there was no evidence to indicate when their father died and whether testate or intestate.
We note also that while plaintiff alleged that defendants were the heirs at law of her brother, Leonard, her evidence indicates that her brother left a will which has been admitted to probate. However, in any event defendants appear to be proper parties in this case as successors in interest to Leonard Nixon Simmons, since it is stated in their brief on this appeal that they are his devisees.
We have reviewed plaintiff's other assignments of error and find no prejudicial error.
For the reasons stated, the judgment appealed from is
Affirmed.
MALLARD, C. J., and GRAHAM, J., concur.