The facts are stated in the opinion of the Court. Randall Jackson died in 1863, seized of the premises, leaving a widow and two children, the latter these plaintiffs. Dower was allotted in October, 1864. The widow married the (280) defendant, Jesse Farmer, in 1867. In January, 1868, the land was sold by Needham Warren (the father of the said widow), as administrator and commissioner, under the order of the court, and was purchased by the defendant, sale was confirmed and title was conveyed to the defendant in January, 1869, who has lived on the land ever since. The plaintiffs became of age, respectively, in 1877 and 1883. Both remained in the State some years after becoming of age, when they removed, but have been on visits here since. In January, 1884, the defendant Jesse Farmer conveyed the land to his son and codefendant, who was at that time a minor. The mother of plaintiffs died in July or August, 1902. This action was begun 11 October, 1906.
The material issues submitted were: 1. Did the defendant Jesse Farmer buy the land in controversy at the sale in 1868 under an agreement with Needham Warren that he would purchase the same and hold the title thereto for the benefit of the plaintiffs and their mother? 2. Is the cause of action barred by the statute of limitations?
The commissioner's deed recites a consideration of $55. The answer avers that by inadvertence of the penman this was inserted instead of $255, the true consideration which they put on proof to show was a fair consideration in the then condition of the land and of the country, the land being subject to the dower which had been laid off. The plaintiffs offered evidence of inadequate consideration. The sale having been confirmed, this last is only competent as a circumstance tending to show the alleged agreement to hold in trust.
There was no evidence of an agreement between Warren and Jesse Farmer beyond the evidence of two or three witnesses that Warren (now dead) stated that day that he wanted no one to bid against Farmer; that arrangements had been made for Farmer to buy the land for his wife and the children. There was no evidence that Farmer was near enough to hear the remark, nor, indeed, that he was then present, and the defendant excepted. One witness testified that he heard Farmer say that day that he had bought the land as last and highest bidder and had a good title. There was also evidence of a report in the crowd that day that Warren wanted Farmer to buy the land and live there with the children. There was evidence from plaintiffs themselves that Farmer had raised the plaintiffs and had also furnished $100 to one of them when tried for murder.
The defendant Jesse Farmer testified that he bought the land for $225; that there were other bidders; that he bought the land for himself alone — paid full price for it; that there was no agreement with *Page 274 (281) Warren to purchase it for his wife and the children, and that he has improved the land and put buildings on it. He also put on several witnesses, who testified that it was an open, fair sale, and no suppression of bidding, and that they heard of no agreement between Warren and Farmer.
The issue was as to the express trust, and the court should have given the fifth prayer of the defendant, which was as follows:
5. There is no evidence fit and proper to be considered by the jury tending to show an agreement by the defendant Jesse Farmer to buy the land in this action for the plaintiffs and hold this land in trust for the plaintiffs, and the jury will find for the defendants. Cobb v. Edwards,117 N.C. 250, 251; Avery v. Stewart, 136 N.C. 426.
There was no issue as to the implied trust and the suppression of bidding, though averred in the amended complaint. Besides, it was 29 years after the elder plaintiff became of age and 23 years after the other became of age before this action was begun. Any implied trust was barred. 1 Beach Trusts, sec. 209; 2 Perry Trusts, sec. 865; Wood Limitations, sec. 200. It is true that plaintiffs allege that they sued within three years after discovery of the alleged fraud. But the only evidence of the alleged fraud was public statements of their grandfather at the sale, which, if made, were more notorious twenty-odd years ago than now. They were on the premises and saw the defendant exercising ownership and taking the crops in disavowal of any trust, even if it was an express trust, in their favor. After such conduct, which would have put the statute in force, the plaintiffs are barred by their long failure to assert their rights.
Error.