dissenting.
I disagree with the majority’s conclusion that the trial court correctly found the house and lot in this case to be marital property. In my opinion, the subject property should be classed as separate because the defendant established that he acquired an equitable interest in the property prior to his marriage to the plaintiff.
In Upchurch v. Upchurch, 122 N.C. App. 172, 468 S.E.2d 61, disc. review denied, 343 N.C. 517, 472 S.E.2d 26 (1996), we concluded that where a party presents “clear, strong and convincing evidence” that an equitable interest has been acquired in property prior to marriage, the property should be properly classified as separate property. “In North Carolina an equitable interest in property can be established in several situations, namely express, resulting, and constructive trusts.” Id. at 175, 468 S.E.2d at 63, (quoting Webster’s Real Estate Law in North Carolina § 28-1, at 1083 (Patrick K. Hetrick & James B. McLaughlin, Jr. eds., 4th ed. 1994)).
The evidence in this case sufficiently shows that the defendant’s equitable interest in the subject property was established by a constructive trust. “A constructive trust is a duty . . . imposed by courts of equity to prevent the unjust enrichment of the holder of title to . . . property which such holder acquired through fraud, breach of *631duty or some other circumstance making it inequitable for him to retain it.” Id. (quoting Roper v. Edwards, 323 N.C. 461, 464, 373 S.E.2d 423, 424-25 (1988)). As the majority notes, the defendant’s father told him that he would give him a tract of land, which he and his wife owned, if defendant wanted to build a house on it. A year later defendant did indeed construct a house on the tract of land that his father had promised to give to him. Defendant moved into the house and lived there for approximately seven years before marrying plaintiff. During this time, legal title to the land remained in the names of defendant’s parents.
These facts establish defendant’s equitable interest in the property by way of a constructive trust. The record clearly shows that defendant’s parents intended to give the property to the defendant.1 Since defendant established by clear, strong and convincing evidence that he had an equitable interest in the subject property before marrying plaintiff, the property should be classed as separate property.
. In fact, the record indicates that defendant’s parents conveyed the property to him for the purpose of facilitating the acquisition of a loan not as a gift to the marital unit. It was only after the defendant sought to collateralize a loan on the property that the issue of title became essential because the bank required defendant to have the property in his name. Thus, the parents intent at the time of signing the deed was to carry out the defendant’s wishes in order to allow him to obtain a loan on the property. Nothing, other than a blind reading of the deed which includes the names of both defendant and his wife, indicates that the parents ever intended to convey a gift of the property to the defendant’s wife.