Elsie Norton FERGUSON
v.
Morris S. FERGUSON and wife, Patricia A. Ferguson.
No. 8115DC319.
Court of Appeals of North Carolina.
January 5, 1982.*290 Northen & Bagwell by O. Kenneth Bagwell, Jr., Chapel Hill, for defendants-appellants.
J. Anderson Little, Chapel Hill, for plaintiff-appellee.
BECTON, Judge.
Defendants argue (1) that their motion for summary judgment should have been granted because no evidence of actual or constructive fraud was presented to support a constructive trust; (2) that the court erred in admitting testimony that plaintiff sought to get her three daughters to hold the land for the benefit of all the children; and (3) that their motions for a directed verdict and a new trial should have been granted because plaintiff failed to carry her burden of proof. We reject defendants' arguments.
I
SUMMARY JUDGMENT
Because this case involves a dispute over the existence and contents of an agreement *291 to hold real property for the benefit of others, summary judgment was properly denied for the reasons that follow.
A. Plaintiff first argues that "[a] parol trust may be engrafted onto a deed valid on its face, even in the absence of fraud." Although this is a correct statement of the law relating to express trusts, it forms no basis for our holding since plaintiff in her complaint merely prayed for a constructive trust. Plaintiff incorrectly uses the terms "parol trust" and "constructive trust" interchangeably in her brief. An express trust arises by agreement of the parties. Constructive trusts "exist purely by construction of law, without reference to any actual or supposed intention to create a trust, for the purpose of asserting rights of parties or of frustrating fraud...." Avery v. Stewart, 136 N.C. 426, 435, 48 S.E. 775, 778 (1904). It should be noted that a parol agreement may form the basis for an express trust or a constructive trust.
"North Carolina is one of a minority of states that has never adopted the Seventh Section of the English Statute of Frauds which requires all trusts in land to be manifested in writing." Bryant v. Kelly, 279 N.C. 123, 129, 181 S.E.2d 438, 441 (1971). Indeed, our courts have "always upheld parol trusts in land in the `A to B to hold in trust for C' situation" even when there is no consideration to support the transfer. Id. at 129-130, 181 S.E.2d at 442. In this context, however, an express trust, not a constructive trust, is created. An express trust thus created may be proved by "parol evidence, which is clear, strong and convincing." Electric Co. v. Construction Co., 267 N.C. 714, 719, 148 S.E.2d 856, 859-60 (1966).
In the case sub judice, the evidence of an express trust seems clearly sufficient to submit the case to the jury. However, because parol trusts and constructive trusts are not synonymous and because plaintiff never advanced an express trust theory in her pleadings or at trial, the denial of defendants' summary judgment motion will not be upheld on an express trust theory.
B. Summary judgment was properly denied since, as plaintiff next argues, "[a] parol trust may be engrafted onto a deed valid on its face if the elements of fraud exist." In this context, we speak of a constructive trust.
The principal in its direct application to our case has been thus stated: "Where a party acquires property by conveyance or devise secured to himself under assurances that he will transfer the property to, or hold and appropriate it for, the use and benefit of another, a trust for the benefit of such other person is charged upon the property, not by reason merely of the oral promise, but because of the fact that by means of said promise he had induced the transfer of the property to himself."
136 N.C. at 435-36, 48 S.E. at 779, quoting Glass v. Hulbert, 102 Mass. 24, 39, 3 Am. Rep. 418, 430 (1869).
The mere failure, nothing else appearing, to perform an agreement or to carry out a promise does not give rise to a constructive trust, since such a breach would not constitute fraud or a breach of a fiduciary relationship. Bank v. Insurance Co., 265 N.C. 86, 143 S.E.2d 270 (1965). Moreover, the mere relationship of parent and child does not raise the presumption of fraud. Willetts v. Willetts, 254 N.C. 136, 118 S.E.2d 548 (1961); Walters v. Bridgers, 251 N.C. 289, 111 S.E.2d 176 (1959). However, it is fraudulent for a child, as grantee, to make a promise which deceives a parent, as grantor, and induce the parent to act when the child making the promise knows at the time it is made that he does not intend to perform the promise. See Avery v. Stewart.
To establish fraud the false representation must be of some material fact that is past or existing. And, although a promise, standing alone, relates to something that is to be done in the future, the state of mind of the promisor at the time of the promise is a past or existing material fact which can be falsely represented. See Lee, North Carolina Law of Trusts, pages 78-79 (1978). So, if defendants in this case *292 made a promissory representation, intending at that time not to comply with the promise but rather to induce the plaintiff to act, such misrepresentation is fraudulent and will support the imposition of a constructive trust. As stated in Lamm v. Crumpler, 240 N.C. 35, 44, 81 S.E.2d 138, 145 (1954):
What [a person's] condition of mind was at the time and his intent in respect to the fulfillment of the promise presents a question for the jury.
... The state of any person's mind at a given moment is as much a fact as the existence of any other thing....
In this case, plaintiff clearly alleged that there existed an oral agreement between the parties prior to the legal conveyance of the land and further alleged that the defendants made promissory representations merely to mislead her while having no intention of complying with their promises. It is this forecast of evidence that distinguishes this case from Cornatzer v. Nicks, 14 N.C.App. 152, 187 S.E.2d 385, cert. denied 281 N.C. 154, 188 S.E.2d 365 (1972). In Cornatzer, plaintiff alleged that because she and her husband were too old to get a loan and build a home on their lot, they conveyed legal title to the lot to their son and his wife. Their son agreed to obtain a loan, build a house on the lot, and later to reconvey the property to plaintiff and her husband. The son later died, and his widow refused to convey the property to plaintiff. Significantly, the plaintiff in Cornatzer sought to require her son's wife to fulfill an oral agreement made between plaintiff and her son, which agreement the son had intended to fulfill but was prevented from doing so by his death. The son's wife had made no promise. Thus, there was no past or existing fact at issue and no evidence of fraud in Cornatzer.
In this case, the plaintiff alleged that the defendants never intended to fulfill their oral agreement when they induced her to convey the land to them. Because genuine issues of material fact concerning fraud were present, summary judgment was properly denied.
C. The pleadings suggest that plaintiff conveyed her land to defendants in order to qualify for governmental aid in the event she became ill. Defendants, therefore, argue that the clean hands doctrine applies when a "grantor seeks to defraud creditors or secrete funds from government agencies." We summarily reject their argument that plaintiff came "into equity... with [un]clean hands."
The doctrine of clean hands is not one of absolutes that applies to every unconscionable act of a party. Trust Co. v. Gill, State Treasurer, 286 N.C. 342, 364, 211 S.E.2d 327, 342 (1975). Whether plaintiff committed an unconscionable act and whether her actions were more egregious than those of defendants, are questions of material fact to be decided by a jury and not by the court. High v. Parks, 42 N.C. App. 707, 257 S.E.2d 661 (1979), disc. review denied 298 N.C. 806, 262 S.E.2d 1 (1979). See also 30 C.J.S. Equity § 98a (1965). Moreover, as we said in High v. Parks:
[I]f the [plaintiff] did anything inequitableand this is a material issue of fact for trialit was not against defendants but against [a party] not involved in the property dispute in any way. A person is not barred from his day in court in a particular case because he acted wrongfully in another unrelated matter or because he is generally immoral. [Citations omitted.]
Id. 42 N.C.App. at 711, 257 S.E.2d at 663.
II
THE EVIDENTIARY RULINGS
At trial, plaintiff testified that she, on separate occasions, asked each of her three daughters if they would allow her to transfer the land to them on the condition that they hold it until plaintiff's death and then divide the land equally among all the children. Plaintiff testified that each of her three daughters refused the offer. Each of the three daughters then corroborated plaintiff by testifying that the offer was made and refused. Defendants contend that the admission of this testimony *293 was prejudicial and confusing. The relevancy of the testimony is apparent. It also tends to bolster the credibility of and corroborate the plaintiff's version of the transaction. As stated by plaintiff in her brief:
the fact that the Plaintiff conveyed her land to the Defendant was not an isolated transaction. It was the final act in a conveyance that she had been attempting for some time, but had not been able to complete due to the lack of a willing participant among her family members. Testimony about her attempts to get another of her children to accept the land, then, was part and parcel of the transaction with the Defendants, which is the subject matter of this action.
Consequently, we are not persuaded that the trial court erred in its evidentiary rulings.
III
THE POST TRIAL MOTIONS
By their final assignment of error, defendants contend that plaintiff failed to meet her evidentiary burden at trial as a matter of law and thus: (1) "a verdict should have been directed against her pursuant to Rule 50 of the North Carolina Rules of Civil Procedure; or (2) the jury verdict in her favor should have been overturned pursuant to Rule 59 of the North Carolina Rules of Civil Procedure."
In passing on a motion for directed verdict or judgment notwithstanding the verdict, the evidence is to be taken in the light most favorable to the non-moving party, and that party is entitled to all reasonable inferences that can be drawn from it. Summey v. Cauthen, 283 N.C. 640, 197 S.E.2d 549 (1973). We believe the trial court correctly submitted the plaintiff's case to the jury after determining that plaintiff had submitted evidence which, if believed by the jury, was sufficient to prove her claim. Plaintiff's case for the imposition of a constructive trust on the land which she conveyed to the defendants is clearly supportable. Plaintiff presented evidence that a false promissory representation of a past or existing material fact was made by the defendants; that the defendants made the promise intending at the time they made it not to comply with it, but rather to induce the plaintiff to convey her property to them; and that the plaintiff did in fact rely upon the defendants' misrepresentation of their intent.
Defendants have presented no compelling arguments showing that they are entitled to a new trial. Accordingly, we find
No error.
MORRIS, C.J., and ARNOLD, J., concur.