William L. HUMPHREY, Sarah H. Albrittion, Mary Humphrey Fisher, Virginia H. Griffin, Nell H. Griffin and C. E. Humphrey, Jr.
v.
Mrs. Willie B. FAISON, Executrix of the Estate of India B. Humphrey, deceased, and Mrs. Willie B. Faison, Individually.
No. 311.
Supreme Court of North Carolina.
November 20, 1957.*528 Thomson & Thomson, Goldsboro, Jones, Reed & Griffin, Kinston, for plaintiffs appellant.
Edmundson & Edmundson, Goldsboro, Butler & Butler, Clinton, for defendant appellee.
DENNY, Justice.
This appeal may be disposed of on its merits, by a consideration of the assignment of error based on plaintiffs' exception to the allowance of the defendant's motion for judgment as of nonsuit and certain other contentions of the plaintiffs, without a seriatim discussion of the numerous exceptions and assignments of error set out in the record.
The plaintiffs contend that the proceeding instituted on 23 November 1934 in the Superior Court of Wayne County, in what was then the Fourth Judicial District, for the purpose of having the court construe the last will and testament of Hugh Miller Humphrey, including the codicil to said will, was never removed, for any purpose, to Sampson County, which was then a part of the Sixth Judicial District. That since the matter was heard and judgment entered in Sampson County, the judgment is null and void.
It appears from the record that no issues of fact were raised on the pleadings in that proceeding; that the parties waived a trial by jury and that the cause was heard by consent of all the parties who had or claimed to have any interest in the estate of Hugh Miller Humphrey. Furthermore, all parties were present in person or represented by counsel at the hearing. Therefore, the contention of the plaintiffs in this respect is without merit. Patterson v. Patterson, 230 N.C. 481, 53 S.E.2d 658; Edmundson v. Edmundson, 222 N.C. 181, 22 S.E.2d 576; Killian v. Maiden Chair Co., 202 N.C. 23, 161 S.E. 546; Henry v. Hilliard, 120 N.C. 479, 27 S.E. 130.
The plaintiffs further contend in their brief that upon the death of Hugh Miller Humphrey, Mary H. Humphrey, his sister and executrix, and his widow, Mrs. India B. Humphrey, entered into an oral agreement with the nieces and nephews of Hugh Miller Humphrey (the plaintiffs herein), to hold in trust for them all the properties of which Hugh Miller Humphrey died seized and possessed, and to execute valid wills devising to the plaintiffs all properties that might be distributed to each of them from the said estate, provided, these plaintiffs would not contest the proceeding instituted against them in the Superior Court of Wayne County, North Carolina, on 23 November 1934, which proceeding was instituted for the purpose of having the last will and testament of Hugh Miller Humphrey, and the codicil thereto, construed by the court. And provided further, that these plaintiffs would not appeal from any judgment entered in that proceeding. The plaintiffs also contend that this oral agreement was entered into before his Honor, Judge Grady, entered the judgment on 23 March 1935 in said proceeding; that such title as passed under the terms of the judgment was subsequent to the oral agreement between the executrix, the widow, and the nieces and nephews.
The record does not support this contention with respect to the time the oral agreement was entered into. The plaintiffs, in their original and amended verified pleadings, expressly allege that the oral agreement upon which they rely to create a trust, and as a contract upon the part of Mrs. India B. Humphrey, the widow, to execute a will which at her death would vest in these plaintiffs title to the properties distributed to her from the estate of Hugh Miller Humphrey, was entered into "subsequent to the entering of said decree and the giving of the notice of appeal therefrom to the Supreme Court of North Carolina."
*529 Since the defendants in the original proceeding (the plaintiffs herein) did not appeal from the judgment entered by Judge Grady in that proceeding, they are bound thereby with respect to the construction of the will and codicil and the rights of the parties pursuant thereto.
In Armfield v. Moore, 44 N.C. 157, in defining estoppel by judgment, Pearson, J., said: "The meaning of which is, that when a fact has been agreed on, or decided in a court of record, neither of the parties shall be allowed to call it in question, and have it tried over again at any time thereafter, so long as the judgment or decree stands unreversed." Pinnell v. Burroughs, 172 N.C. 182, 90 S.E. 218; Hardison v. Everett, 192 N.C. 371, 135 S.E. 288; Southern Distributing Co. v. Carraway, 196 N.C. 58, 144 S.E. 535; Harshaw v. Harshaw, 220 N.C. 145, 16 S.E.2d 666, 136 A.L. R. 1411; King v. Neese, 233 N.C. 132, 63 S.E.2d 123; Gaither Corporation v. Skinner, 241 N.C. 532, 85 S.E.2d 909.
It affirmatively appears that if any agreement was entered into by the plaintiffs not to contest the proceeding instituted for the purpose of having the court declare the rights of the parties under the will and codicil executed by Hugh Miller Humphrey, it was breached. The evidence of the Honorable W. A. Dees, a reputable attorney of the City of Goldsboro, North Carolina, is to the effect that he was employed by these plaintiffs to represent them in the proceeding and to contest it on their behalf. That he filed an answer on their behalf and contested the proceeding to the best of his ability. That his clients, these plaintiffs, never informed him that any such agreement had been made. He likewise testified that he was never requested to abandon the contest or not to present their contentions to the court, as set forth in the complaint and answer. That his duties with respect to the litigation were not terminated until he received written instructions, signed by all the defendants (the plaintiffs herein), to withdraw the appeal to the Supreme Court.
There is nothing disclosed by the record on this appeal that would justify any conclusion or inference that the original proceeding under consideration was not prosecuted and defended in good faith, or that any pertinent fact was withheld from the court in the hearing in that proceeding.
In our opinion, the plaintiffs' evidence is insufficient to establish a parol trust as alleged by them. In the first place, the last will and testament of Hugh Miller Humphrey, including the codicil thereto, never vested any interest in these plaintiffs. The terms of the codicil to the will, according to our decisions, and Judge Grady's judgment, vested in Mrs. India B. Humphrey the widow of Hugh Miller Humphrey, deceased, and his sister, Mary H. Humphrey, share and share alike, the absolute fee simple title to all the properties, both real and personal. G.S. § 31-38. The third and fourth items in the codicil, under our decisions, would seem to be mere precatory provisions. Barco v. Owens, 212 N.C. 30, 192 S.E. 862; Dixon v. Hooker, 199 N.C. 673, 155 S.E. 567; Brown v. Lewis, 197 N.C. 704, 150 S.E. 328; Roane v. Robinson, 189 N.C. 628, 127 S.E. 626; Weaver v. Kirby, 186 N.C. 387, 119 S.E. 564; Springs v. Springs, 182 N.C. 484, 109 S.E. 839; Brooks v. Griffin, 177 N.C. 7, 97 S.E. 730; Hardy v. Hardy, 174 N.C. 505, 93 S.E. 976.
In the second place, conceding, without deciding, that the judgment entered by Judge Grady did pass title in remainder from these plaintiffs to Mrs. India B. Humphrey and Mary H. Humphrey, the judgment was signed and notice of appeal to the Supreme Court given before the alleged oral agreement was entered into. Hence, it was too late to engraft a parol trust thereon. It is settled law that, after title to real property has passed, any oral agreement to engraft a trust thereon falls within the statute of frauds and no action *530 for a breach thereof can be maintained. G.S. § 22-2; Loftin v. Kornegay, 225 N.C. 490, 35 S.E.2d 607; Embler v. Embler, 224 N.C. 811, 32 S.E.2d 619; Hamilton v. Buchanan, 112 N.C. 463, 17 S.E. 159; Blount v. Washington, 108 N.C. 230, 12 S. E. 1008; Pittman v. Pittman, 107 N.C. 159, 12 S.E. 61, 11 L.R.A. 456.
Moreover, if Mrs. India B. Humphrey did make a verbal agreement with these plaintiffs to execute a will that would vest in them, at her death, title to all the property she received from her husband's estate, it would be unenforceable. Jamerson v. Logan, 228 N.C. 540, 46 S.E.2d 561, 15 A.L.R.2d 1325; Stewart v. Wyrick, 228 N.C. 429, 45 S.E.2d 764; Coley v. Dalrymple, 225 N.C. 67, 33 S.E.2d 477; Daughtry v. Daughtry, 223 N.C. 528, 27 S.E.2d 446; Price v. Askins, 212 N.C. 583, 194 S.E. 284; Grantham v. Grantham, 205 N.C. 363, 171 S.E. 331.
In Jamerson v. Logan, supra [228 N.C. 540, 46 S.E.2d 563], this Court, speaking through Stacy, C. J., said: "An agreement to devise real property is within the statute of frauds, as is also an indivisible contract to devise real and personal property. Grady v. Faison, 224 N.C. 567, 31 S.E.2d 760."
The defendant in this action denied in her answer that the alleged oral agreement was ever made. Such denial invoked the statute of frauds as effiectively as if it had been expressly pleaded. Furthermore, a denial of the agreement is equivalent to a plea of the statute. Jamerson v. Logan, supra; Ebert v. Disher, 216 N.C. 36, 3 S.E.2d 301; McCall v. Textile Industrial Institute, 189 N.C. 775, 128 S.E. 349. Therefore, any testimony offered to prove the parol agreement to devise the real and personal property Mrs. India B. Humphrey received from the estate of her husband, was incompetent and properly excluded on objection. Jamerson v. Logan, supra.
Applying the law to the facts disclosed on the record in this appeal, we hold that the judgment as of nonsuit entered in the court below was properly granted and should be upheld.
Affirmed.