On 2 March, 1813, one Burwell Benton conveyed the land in question by deed to Stephen Taylor, now deceased, the father of (247) the plaintiff and of the defendant John Taylor. The bill alleges that the plaintiff furnished one-half of the purchase-money, and that it was agreed between the plaintiff and his father that one-half of the land should be conveyed to him, and that in pursuance of this agreement one Allen Carpenter, a surveyor, was employed by the parties to run off the land into two equal tracts, and to write a deed for one part of the same from Stephen, the father, to the plaintiff; that Carpenter accordingly divided the land, and drew a deed for one-half, to-wit, 237 acres; that the son immediately thereafter, by the father's consent, went into possession of the part allotted to him by Carpenter's survey, and remained in possession thereof up to the time of Stephen Taylor's death; that from accident the deed was not signed by said Stephen, though he frequently declared his willingness to do so, and admitted that plaintiff had paid one-half the purchase-money to Benton and was entitled to half of the land.
The bill further alleges that all the other defendants, except John Taylor, who with him are the heirs at law of Stephen Taylor, have admitted the plaintiff's equity, and by a deed executed by them attempted to convey their interest in the share laid off for him by the surveyor, but by the unskillfulness of the draughtsman only a life estate was conveyed to him by this deed. The prayer of the bill is that the defendants convey in fee-simple the share of the land laid off by the surveyor to the plaintiff.
The bill was taken pro confesso as to some of the defendants, and the rest, with the exception of the defendant John, admitted the plaintiff's bill.
John Taylor, one of the heirs at law of Stephen Taylor, answered the bill, and denied the payment of half the money by the plaintiff. He admits that there was an agreement between the plaintiff and his father that he was to have one-half of the land bought of (248) Benton whenever he paid half of the money, and that this was the reason why the land was run off by the surveyor, but says the plaintiff never paid any part of the money to his father or to any one else, and being a very poor person, was totally unable to do so.
Replication was taken to this answer, and proofs filed, the material portions of which are recited in the opinion of the Court. *Page 172
Cause set for hearing and transferred to this Court. The bill was filed for the purpose of compelling the defendant to execute a conveyance to the plaintiff for an interest in one-half of a certain tract of land, which the plaintiff alleges was purchased and paid for jointly by him and Stephen Taylor, his father, and for which his father took the deed to himself, with a promise to convey one-half of the land to plaintiff. The defendant John Taylor denies the trust, and the question is, has the plaintiff supported his allegations by proof sufficient to entitle him to a decree? This is one of a class of cases of which several have recently been before the Court, and in which it has been held that to convert a deed absolute on its face into a security for money or a trust there must be proof, not merely of the party's declarations, but of facts and circumstances, dehors the deed, inconsistent with the idea of an absolute purchase. We think that the testimony furnishes abundantly the required proof. In addition to the oft-repeated admissions by the father of the joint purchase and payment by himself and his son, there are the clearly-proved facts of the survey, plat and division of the land between the purchasers, made by the surveyor Carpenter, the taking possession of his part by the plaintiff with his father's knowledge and consent, and retaining the same (249) up to the time of his father's death, and afterwards until the filing of the bill, without paying any rent therefor. These facts are entirely inconsistent with the idea of an absolute purchase by Stephen Taylor of the whole land for himself. The plaintiff is entitled to a decree that the defendants shall execute the necessary conveyance or conveyances to perfect his title to the land in question. The defendant John Taylor must pay the costs.
Decree.
Cited: Glisson v. Hill, 55 N.C. 259; Ferguson v. Haas, 64 N.C. 778;Henderson v. McBee, 79 N.C. 221; Harding v. Long, 103 N.C. 7.