Loftin v. Kornegay

Denny, J.

We deem it unnecessary to discuss the provisions of the alleged oral agreement under which the plaintiffs seek to establish a parol trust in their favor against the widow and heirs at law of Prince Kornegay. Whatever the agreement might have been, the record discloses that after it was entered into, the plaintiffs executed and delivered to Prince Kornegay a deed with full covenants and warranties, for the land in controversy. A parol agreement in favor of a grantor, entered into at the time of or prior to the execution of a deed, and at variance with the written conveyance is unenforceable in the absence of fraud, mistake or undue influence.

Walters v. Walters, 172 N. C., 328 , 90 S. E., 304 ;

Cavenaugh v. Jarman, 79 S. E., 673 ;

Gaylord v. Gaylord, 150 N. C., 222 , 63 S. E., 1028 . To permit the enforcement of such an agreement would be tantamount to engrafting a parol trust in favor of a grantor upon his deed, which purports to convey the absolute fee simple title to the grantee. A parol trust in favor of a grantor cannot be engrafted upon such a deed.

Gaylord v. Gaylord, supra; Campbell v. Sigmon, 170 N. C., 348 , 87 S. E., 116 ;

Chilton v. Smith, 180 N. C., 472 , 150 S. E., 1 ;

Perry v. Surety Co., 190 N. C., 284 , 129 S. E., 721 ;

Waddell v. Aycock, 195 N. C., 268 , 142 S. E., 10 ;

Penland v. Wells, 201 N. C., 173 , 159 S. E., 423 ;

Carlisle v. Carlisle, ante, 462.

Brown, J., in speaking for the Court, in Ricks v. Wilson, 154 N. C., 282 , 70 S. E., 476 , said: “The principle is well established in this State that where the grantee accepts a deed for property for which he himself pays nothing, under agreement, accompanying the delivery, that he will hold the same for the benefit of or convey the same to a third person, a parol trust is created in favor of the latter. But it is held that the grantor, in delivering a deed, cannot retain control of the property and, by parol, create a trust to be thereafter enforced in his own favor,” citing Gaylord v. Gaylord, supra.

Moreover, after the execution and delivery of the fee simple deed to Prince Kornegay by these plaintiffs, any agreement with the grantee, his administratrix, or his heirs, affecting the title to the land in controversy, *493 falls within, the statute of frauds.

Walters v. Walters, supra; Kelly v. McNeill, 118 N. C., 349 , 24 S. E., 738 ;

Hamilton v. Buchanan, 112 N. C., 463 , 17 S. E., 159 .

Inasmuch as these plaintiffs executed and delivered to Kornegay a deed with full covenants and warranties, subsequent to the time they entered into the alleged parol trust agreement with him, the defendants’ motion for judgment as of nonsuit should have been allowed.

Hare v. Weil, 213 N. C., 484 , 196 S. E., 869 ;

Gaylord v. Gaylord, supra.

Eeversed.