This was an action to recover a tract of 38 acres of land near Hickory which the plaintiff claimed under a deed in the usual form and with the usual covenants, executed by Paul Sigmon 4 September, 1904, duly acknowledged before a justice of the peace, and recorded in the register's office of Catawba, 13 September, 1904.
There seems to be no conflict in the evidence, which is substantially that the grantor, an old soldier of the war of 1861-65, was about 84 years old when he executed the deed, and that the defendant (who was one of several children) was living in the house with him, with her son; that she continued to live with him till his death, but that her son, at whom the old man had taken some offense, soon after the deed was executed moved into another house not far off. It was also in evidence that Paul Sigmon lived nearly ten years after the deed was made; that its execution was known to the family connection, which consisted of several children and grandchildren, that during the balance of his life he paid the taxes on the land and paid no rent for the premises, but that he never demanded of the plaintiff a reconveyance or reformation of the deed. There is no allegation or proof of undue influence or of fraud. The defense set up is that the grantor, being tired of the presence *Page 412 of his grandson in the house (the son of the defendant), hit upon the plan of executing this deed to secure his departure.
The only issue submitted was: "Is plaintiff the owner and entitled to the possession of the land described in the complaint?" to which, upon the above evidence, the court rightly instructed the jury to respond "Yes."
The exceptions are to this instruction and the following exceptions to evidence:
Exception 1. The defendant offered to prove by Killian, the justice of the peace who took the acknowledgment of the deed, that a week or two weeks prior thereto the grantor said to him, "I am trying to get Pink away, and he won't go, and I am going to try to fix some plan to get him away." This was properly ruled out. The declaration was made a week or two before the execution of the deed and made no mention of the deed as the plan, and, if it had, this could not contradict the subsequent solemn act of executing the deed. This witness testified that he had been a justice of the peace for 34 years and was witness to the deed. "I written the deed and taken the acknowledgment in my office in Hickory; it was executed in my office; Paul Sigmon and Pink Campbell (the grantor and grantee) were present at the time. Mr. Sigmon and Mr. Campbell come to me to make a deed from Sigmon to Campbell, and I written the deed and taken the acknowledgment; I didn't (350) seen any money. I have no recollection of anything being said by Paul Sigmon about the execution of this deed, or of the transfer of this land to Mr. Campbell, at that time, or any time before that." It was at this time that the above question was asked and properly ruled out.
Exception 2 does not appear in the appellant's brief, and is therefore taken as abandoned. Rule 34, 164 N.C. 551.
Exception 3 is to the exclusion of the testimony of the witness Deitz, by whom the defendant offered to prove a conversation with the grantor six years after the deed was made and three years before this suit began in which the grantor had said that though he had made a deed to the plaintiff, he was to hand it back. This was incompetent for parol testimony as to a declaration of the grantor could not invalidate his prior conveyance.
Exceptions 4, 5 and 6 are to the exclusion by the court of the evidence of Deal, Whitener, and Webb, of declarations to the grantor that he had made the deed to Campbell, but that it was to be returned to him.
Exceptions 7 and 8 were to the exclusion of the offered evidence of the witness Webb, that he told Campbell what Sigmon had said about the deed and that Campbell did not reply. This was not such an occasion that the party addressed was called upon to answer, and, therefore, his *Page 413 silence was not a quasi admission. It appears that the witness Webb told Campbell that he was under subpoena at the time, as a witness for the defendant, and it may have been prudent and wise not to get into controversy with him. It is not like the case where one is charged with a crime and remains silent. In such case, except under unusual circumstances, a failure to deny the charge is a quasi admission.
Upon the whole evidence there was nothing which the court could submit to the jury to show that there was a parol trust to the grantor. There was no declaration of such trust at the execution of the deed, which recited a consideration. The witnesses for the defendant testified that Campbell had said that he paid $1,000 for the land, and they testified that during those remaining years of his life they did not know of the old man having any money. The bare fact that he remained in possession of the land, paying taxes and listing the land for taxes in his own name and paying no rent, in the absence of evidence of fraud or undue influence would not justify setting the deed aside. Such acts are not inconsistent with a permissive occupancy of the property from the grantee. The circumstances are unusual, but so is the fact that the deed was at once recorded to the knowledge of the entire family connection, and that no steps were taken to set the deed aside. It was also in evidence that the grantor was sound in mind and body and remained such, doing daily labor up to his death, ten years later.
The charge of the court is fully justified by the elaborate discussion as to the invalidity of a parol trust in favor of the grantor by Hoke,J., in Gaylord v. Gaylord, 150 N.C. 222. After a thorough (351) discussion of the authorities, Judge Hoke thus sums up the law in this State: "The seventh section of the English statute of frauds, which forbids the creation of parol trusts or confidences of land, etc., unless manifested and proved by some writing, not having been enacted here, and there being no statute with us of equivalent import, such trusts have a recognized place in our jurisprudence, but they cannot be set up or engrafted in favor of the grantor upon a written deed conveying to the grantee the absolute title to lands and giving clear indication on the face of the instrument that such a title was intended to pass," adding thereto the following: "Upon the creation of these estates, however, our authorities seem to have declared or established the limitation that except in cases of fraud, mistake, or undue influence, a parol trust, to arise by reason of the contract or agreement of the parties thereto, will not be set up or engrafted in favor of the grantor upon a written deed conveying to the grantee the absolute title, and giving clear indication on the face of the instrument that such a title was intended to pass."
The above is cited verbatim as authority in Jones v. Jones, 164 N.C. 322. It is also said, in Cavenaugh v. Jarman, 164, N.C. 375, "If there *Page 414 was no estoppel the plaintiff could not establish a parol trust in his own favor against the grantee in his deed," citing Gaylord v. Gaylord, supra.
Among the many cases cited in Gaylord v. Gaylord are Squire v. Harder, 1 Page, 494, which held, "Supposing the deed in question to have been in the common form, the recital of a consideration and the declaration of the use to the grantee and her heirs in the habendum are both conclusive between the parties and exclude any resulting trust to the grantor," and citing, also, Wilkinson v. Wilkinson, 17 N.C. 378, in which Gaston, J., held that the recital of a valuable consideration is conclusive on the parties and those claiming under them unless it is shown to have been introduced by mistake or fraud.
Indeed, if, notwithstanding the solemn recitals and covenants in a deed, the grantor could show a parol trust in himself it would virtually do away with the statute of frauds and would be a most prolific source of fraud and litigation. No grantee could rely upon the covenants in his deed. It is true that the recital of the amount of the consideration or of its receipt can be contradicted in an action to recover the purchase money, but that is because this is no part of the conveyance. Barbee v. Barbee, 108 N.C. 581, and citations thereto in the Anno. Ed. This case is cited in Gaylordv. Gaylord, 150 N.C. 226, and in Jones v. Jones, 164 N.C. 324.
We have discussed the exceptions to the exclusion of the evidence, but if the evidence had been admitted the instruction to the jury should have been as given.
No error.
Cited: Walter v. Walters, 172 N.C. 330, 331 (6f); Allen v. Gooding,173 N.C. 96 (6d); Thomas v. Carteret, 182 N.C. 380 (6p); Thomas v. Carteret,182 N.C. 393 (6j); Pate v. Gaitley, 183 N.C. 264 (7f); Blue v.Wilmington, 186 N.C. 326 (6f); Williams v. McRackan, 186 N.C. 384 (6j);Tire Co. v. Lester, 192 N.C. 647 (6f); Loftin v. Kornegay, 225 N.C. 492 (6f); Westmoreland v. Lowe, 225 N.C. 555 (7l); McCullen v. Durham,229 N.C. 424 (6f). *Page 415
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