Hodges v. Hodges , 257 N.C. 774 ( 1962 )

127 S.E.2d 567 (1962) 257 N.C. 774

Thomas E. HODGES
v.
Annie J. HODGES.

No. 172.

Supreme Court of North Carolina.

October 10, 1962.

Rountree & Clark and Isaac C. Wright, Wilmington, for plaintiff-appellant.

Louis A. Burney and Elbert A. Brown, Wilmington, for defendant-appellee.

PARKER, justice.

In our decision on the first appeal of this case we ordered a new trial for error in the charge to the jury. In our former decision in this case the Court speaking by Rodman, J., said:

"The crucial questions were: First, was a trust imposed on the proceeds derived from the sale of the Sixth Street lot? If so, were the funds derived from that sale invested in the lot on Twenty-First Street, or were they, as defendant contends, used to purchase a lot on Fifth Street, the remainder interest in which was subsequently conveyed to plaintiff?

* * * * * *

"If plaintiff establishes by clear, cogent, and convincing evidence the agreement to sell the lot on Sixth Street and reinvest the proceeds of sale in other land, a trust estate in plaintiff's favor would, to the extent of his interest in said funds, be created. The investment of those funds in other lands solely in the name of B. B. Hodges would, to the extent of plaintiff's interest in the monies derived from the sale, create a resulting trust in the properties so purchased. [Citing authority.]

"If the agreement to reinvest the proceeds of the sale of the Sixth Street property in other lands for the father for life with the remainder to plaintiff be established, it will of course be necessary, for plaintiff to recover, to show that the proceeds were in fact invested in the lot on Twenty-First Street and the proportion of the purchase price of that lot which came from the sale of the lot on Sixth Street."

This statement in the opinion is the law of the case, Pulley v. Pulley, 256 N.C. 600, 124 S.E.2d 571, and it is a correct statement of the applicable law here.

Judge Cowper made these material findings of fact in his findings of fact No. 2 and No. 3: One. Plaintiff by deed dated 26 March 1947 conveyed to B. B. Hodges, his father, his remainder interest in the property situate at 1013 South Sixth Street in the city of Wilmington, pursuant to an agreement between them that B. B. Hodges would sell this property, and buy other property with the proceeds and take title to it in B. B. Hodges for life, remainder in fee to plaintiff, his son. The basis of this finding of fact is the deed from plaintiff dated 26 March 1947 to B. B. Hodges, offered in evidence by plaintiff, and the testimony of Mrs. Thelma Hodges, plaintiff's wife and a witness for him. Two. The agreement between plaintiff and his father was consummated, so far as the sale of the South Sixth Street property was concerned, by B. B. Hodges conveying this property to Alvin H. Hankins, wife and daughter, by deed dated 26 February 1949. The basis of this finding of fact is the deed from B. B. Hodges dated 26 February 1949 to Hankins et ux., offered in evidence by plaintiff. The deed from B. B. Hodges to Hankins et ux. was made pursuant to an agreement between Hodges and Hankins dated on or about 14 February 1949. This portion of the finding of fact is supported by the testimony of Alvin H. Hankins, a witness for plaintiff. The third finding of fact sets forth with particularity how the purchase price was to be paid by Hankins. This portion of the finding of fact is supported by the testimony of plaintiff's witness Alvin H. Hankins.

Plaintiff assigns as error the second finding of fact and contends that under the facts set forth in this finding of fact an express trust was created in the Twenty-First Street property. Under the allegations of plaintiff's complaint there was no express trust on the Twenty-First Street property, but a resulting trust imposed upon it by equity. And further, the law of the case as stated in the opinion on the first appeal is that if plaintiff is to prevail in imposing a trust on the Twenty-First Street property, it must be on the theory of a resulting trust.

The second finding of fact is supported by abundant, competent legal evidence, and plaintiff's assignment of error to it is overruled. Plaintiff does not challenge by assignment of error the third finding of fact, which is supported by abundant, competent legal evidence.

Judge Cowper's findings of fact, based upon and supported by plaintiff's evidence, establish clearly and positively and unequivocally that there was no trust money received by B. B. Hodges from the sale of the South Sixth Street property prior to 26 February 1949.

Judge Cowper further found as a fact that by deed duly executed and recorded on 27 August 1948 B. B. Hodges received title to property located at 313 North Twenty-First Street in the city of Wilmington from W. P. Sammons et ux., the terms of the sale being a cash purchase price of $5,900.00. This finding of fact is not challenged by plaintiff in his assignments of error. The basis for a portion of this finding of fact is the deed from W. P. Sammons et ux. to B. B. Hodges recorded 27 August 1948, offered by plaintiff. A portion of this finding of fact is supported by the testimony on cross-examination of Mrs. Gretta Hodges, a fourth wife of B. B. Hodges and a witness for plaintiff, as follows: "I do know he [B. B. Hodges] had War Bonds at the time I married him; he had a metal box and it was almost full of War Bonds. * * * He [B. B. Hodges] paid Mr. and Mrs. Sammons all the purchase price when he bought it. He had War Bonds, that is where he got the money. No, he did not need the money from Tommie's house, but he repaid himself for it * * *."

It is true that Mrs. Gretta Hodges testified on direct examination as follows: "He told me at the time he bought the property at 313 North 21st Street that he was going to sell the house on Sixth Street. He had a colored man by the name of Hankins who wanted to buy it. He sold the property at 1013 South Sixth Street and told me at that time he was going to use the money from this sale to buy the property at 313 North 21st Street, but he didn't have enough money to pay for it cash. He told me he had a bank note this colored man was giving him to pay off the payments on that property, and that money was to purchase the home, so Thomas could live there after his death; that was his home on Sixth Street. * * * Mr. B. B. Hodges sold the Sixth Street property in Wilmington to a man named Hankins, a colored man. The funds he derived from that sale went toward the Princess Street property; I know that." Mrs. Thelma Hodges, wife of plaintiff and a witness for him, testified on direct examination: "Mr. B. B. Hodges told Tom that the money to purchase the 21st Street property was the money he got from the Sixth Street property and he was putting it in the 21st Street home."

The determination of what part of the conflicting testimony of Mrs. Gretta Hodges and of Mrs. Thelma Hodges, in respect to the source of the money which B. B. Hodges used in paying the purchase price of the Twenty-First Street property and as to whether or not he paid for it in cash, was accurate and credible, and what part was inaccurate, was a question addressed to Judge Cowper—a trial by jury having been waived by the parties.

The waiver of trial by jury invested Judge Cowper with the dual capacity of judge and juror. Reid v. Johnston, 241 N.C. 201, 85 S.E.2d 114. Consequently it was in Judge Cowper's province to determine the credibility of the witnesses and the weight to be attached to their testimony, and the inferences legitimately to be drawn therefrom, in exactly the same sense that a jury should do in the trial of a case. It was Judge Cowper's right and duty to consider and weigh all the competent evidence before him, giving to it such probative value as in his sound discretion and opinion it is entitled to. People's Bank & Trust Co. v. Tar River Lumber Co., 221 N.C. 89, 19 S.E.2d 138; 89 C.J.S. Trial § 593; 53 Am. Jur., Trial, sec. 1123.

When a trial by jury is waived, and where different reasonable inferences can be drawn from the evidence, the determination of which reasonable inferences shall be drawn is for the trial judge. Turnage Co. v. Morton, 240 N.C. 94, 81 S.E.2d 135.

In Main Realty Co. v. Blackstone Valley Gas & Electric Co., 59 R.I. 29, 193 A. 879, 112 A.L.R. 744, the Court said: "In reaching his conclusions, the trial justice had the benefit of seeing and hearing the witnesses. He also was entitled to consider all the evidence and to draw therefrom such inferences as were reasonable and proper under the circumstances, even though another different inference, equally reasonable, might also be drawn therefrom."

Since Judge Cowper found that B. B. Hodges had no trust funds derived from the sale of the South Sixth Street property on 26 February 1949 in August 1948 when he purchased the Twenty-First Street property, that he paid cash for the Twenty-First Street property, which finding is supported by competent legal evidence of plaintiff's witness Mrs. Gretta Hodges on cross-examination, and that B. B. Hodges did not have any trust funds derived from the sale of the South Sixth Street property prior to February 1949, it necessarily follows that no trust money derived by B. B. Hodges from the sale of the South Sixth Street property went into the purchase of the Twenty-First Street property. All these findings are supported by competent legal evidence. Therefore, no resulting trust could be imposed by plaintiff by operation of equity on the Twenty-First Street property.

Plaintiff assigns as error Judge Cowper's so-called eighth finding of fact, that plaintiff has failed to show by clear, cogent and convincing evidence that any funds derived from the sale of the 1013 South Sixth Street property were invested in the property located at 313 North Twenty-First Street in the city of Wilmington by B. B. Hodges. This assignment of error is overruled. This, in our opinion, is not a finding of fact, but is in the nature of a legal conclusion of Judge Cowper based upon his findings of fact. United States v. Jefferson Electric Mfg. Co., 291 U.S. 386, 54 S.Ct. 443, 78 L.Ed. 859; 53 Am.Jur., Trial, sec. 1132; 89 C.J.S. Trial § 609. The facts found by Judge Cowper based upon adequate legal evidence lead inevitably to this conclusion made by Judge Cowper, and we consider the words used in the conclusion "by clear, cogent and convincing evidence" mere surplusage. No other conclusion is logically possible so long as Judge Cowper's findings of fact stand.

Plaintiff assigns as error the admission in evidence, over his objection, of Item Four of the will of B. B. Hodges, which is as follows: "I make no provision for my son, Thomas E. Hodges, Sr. (sic), because I have already conveyed to him a house and lot at No. 505 South Fifth Street, Wilmington, N. C."

Plaintiff contends this was an ex parte statement denying the trust by the trustee and incompetent against the cestui que trust. It is manifest that Judge Cowper did not consider this Item in the will as a statement denying the trust by B. B. Hodges in making his findings of fact, because his fourth finding of fact is that a trust in favor of plaintiff was imposed upon the proceeds derived from the sale of the property at 1013 South Sixth Street. Its admission in evidence, if incompetent, was harmless. Bizzell v. Bizzell, 247 N.C. 590, 101 S.E. 2d 668, certiorari denied 358 U.S. 888, 79 S. Ct. 129, 3 L.Ed.2d 115, petition for rehearing denied 358 U.S. 938, 79 S.Ct. 322, 3 L.Ed.2d 310. This assignment of error is overruled. This Item in the will might well be considered as a statement by B. B. Hodges of the reason why he left his son nothing in his will.

Mrs. Thelma Hodges, wife of plaintiff and a witness for him, testified on crossexamination: "After the death of Mr. B. B. Hodges, Mrs. Annie Hodges gave me a deed for the property located at 505 South Fifth Street executed to my husband, and he owns it now, and it came from his father." Mrs. Annie Hodges testified to the same effect. Plaintiff states in his brief that this presents the question: Is a deed valid until delivered? The requisites for the valid delivery of a deed are stated in Ballard v. Ballard, 230 N.C. 629, 55 S.E. 2d 316. Plaintiff in his complaint does not allege this deed is void for nondelivery, and does not seek to have it declared void. This question does not arise here. Further, the parties stipulated "that the real property at 505 S. 5th St. at the time of the conveyance to T. E. Hodges by B. B. Hodges had a fair market value of $4,500.00." Surely, plaintiff has no desire to give up this property because of a nondelivery of the deed, when according to the record before us no one is challenging his right to own it on the ground his deed is void for nondelivery.

Plaintiff assigns as error that defendant was permitted, over his objection, to answer the question, "Will you tell us exactly what was said and whether or not the conversation took place that Hankins has related here between him and your husband?" as follows: "It did not. The entire conversation centered around and concerned final payment of this note. There was no mention made of the 21st Street property at that time." Plaintiff contends this testimony was admitted in violation of G.S. § 8-51. Plaintiff called Hankins to the stand as a witness in his behalf, and examined him as to a conversation between him and B. B. Hodges. Defendant was present at the conversation, and testified as to her version of it. Judge Ervin in Peek v. Shook, 233 N.C. 259, 63 S.E.2d 542, in an analysis of G.S. § 8-51 states: "This statute does not render the testimony of a witness incompetent in any case unless these four questions require an affirmative answer: * * * 4. Does the testimony of the witness concern a personal transaction or communication between the witness and the deceased person or lunatic?" The challenged testimony of defendant did not concern a personal transaction or communication between her and B. B. Hodges, therefore it is not excluded by G.S. § 8-51. This assignment of error is overruled.

All the plaintiff's assignments of error, whether discussed above or not, have been carefully examined and all are overruled. Judge Cowper's findings of fact are abundantly supported by competent legal evidence and are in substantial compliance with the requirements of G.S. § 1-185, and his findings of fact support his conclusion, and these in turn support his judgment. No error of law appears upon the face of the record proper. The judgment below is

Affirmed.