Defendant’s objection to the introduction in evidence of statements made by Mrs. Sadie Davis with regard to her ownership of the property we do not regard as tenable. First, because in one instance the statement was made while the defendant himself was present (and made no contrary statement) ; and second, because in other instances evidence of a like character was subsequently introduced without objection.
The real controversy in the case and the point upon which decision hinges is whether the evidence taken in its most favorable light for the defendant is sufficient to go to the jury as a basis for the declaration of a resulting trust in favor of plaintiff or that the defendant is trustee ex maleficio for the plaintiff, with respect to the lands alleged to have been purchased out of the funds of her mother, Sadie Davis.
It is to be noted that this suit is prosecuted by plaintiff as heir at law of Sadie Davis and not by the original party who sustained the wrong. However, the relation between 4hem is of such a character as to give her the legal right to pursue the fund as the sole interested person, and representative of the rightful grantee. The trust, if it is found to exist, went into effect when title was wrongfully taken in the name of the defendant. Shields v. Harris, 190 N. C., 520, 130 S. E., 189; Norcum v. Savage, 140 N. C., 472, 473, 53 S. E., 289; Moorman v. Arthur, 90 Va., 455, 18 S. E., 869.
While the evidence is contradictory, yet that in behalf of the plaintiff is very direct and specific and tends to show such a relationship as existing between Sadie Davis and her brother-in-law, the defendant, and such a violation of trust on the part of the latter, as would make him either the trustee of a resulting trust on the principle of following the fund, or a trustee ex maleficio because of fraud and misconduct with respect to the property purchased by him. Creech v. Creech, 222 N. C., 656, 24 S. E. (2d), 642; Avery v. Stewart, 136 N. C., 426, 48 S. E., 775; 54 Am. Jur., “Trusts,” Sec. 208, n. 4, p. 162; Id., Sec. 218, n. 77, p. 168; Speight v. Branch Banking & Trust Co., 209 N. C., 563, 183 S. E., 734; Lefkowitz v. Silver, 182 N. C., 339, 109 S. E., 56, 23 A. L. R., 1419.
If we wish to preserve the distinction and nomenclature obtaining here, it may be noted that the issue submitted relates to the first mentioned class of trust. The motion for judgment as of nonsuit was properly denied.
The record discloses no sound reason for disturbing the result of the trial, and we find therein
No error.