The state chronicle. [volume] (Raleigh, N.C.) 1883-1893, 1886-07-08
SUPREME COURT REVIEWS.
Some Decisions. Reviewed by Member r
of the Bar.
ISpeclaI Cor. SrATE CmEoNLcLE.l


the attention Of the News Observer in such
fashion as to determine that organ TO
squelch the intruder in the usual organic
manner by an ipse dixt. Hence he char
ges Lex with 'masquerading as q law
yer, and proceeds to aosail his motives
by denouncing him person who Is
s'trying to get even with the supreme
Court for the loss Of a pet case. The
editor is mistaken Lawyers are capable
Of higher motives than those he attributes
to Lex, and the motive III this case is
by fair review Of series Of supreme
Court decisions to show that its errors de
nonstrate the inadequacy of the Tribunal;
not withstauding the fulsome and hatu
lent tiattery of toadying admirers, some
Of whom masquerade as organs OF
public sentiment
Lex" does not impugn the court for
an error Of Ruflin, J III 1882, but because
Smith, G. }. and Ashe participated in it,
and still adhere to it and the error is SO
gross as to show that the present court is
not ''up to the mark" for Il Supreme Trl
bunal, despite the insufferable hattcry Of
obsequious partizans.
If any lawyer doubts the accuracy Of
"Lexs statements Of the cases of Levy
Us. Griffin, 90 n c. 236; Evans VS. King,
Jones Eq. 3s,, and Holmes VS. Ilolme,
Sc n. c. 205; the references are again
given for his examination, and if there be
a distinction between thcm--why Holmes
was not construed like the others, he is
requested to point it out: the Supreme
Court has not done 50.
LEX" repeats that '.Lcwin nowhere
says as kuflin quoted him, that an cquita
bic estate may be granted without the
word heirs" He did in his original cdi-
ton use that language, but that was when
the ''old notion that a trust might have
IA more liberal construction than a legal
limitation eXistcd-p. II.
But since the old notion came to an end
he revised and corrected his mistake, re-
tracing the word granted and substi
tuting for it created.
Citing the cases IA Beav. 467, Is Beav
4S0, &c, and illustrating the text by two
cases, one of Il devise the other of a deed
as LEX" has shown; Lex properly
Disseminated when he addressed himself
to what Levin now ''says''- rather than
to what he has said and unsaid If our
court had rot intended to renhate the old
notion they would have resorted to the
modern Levin who, in what he ''says,
has materially changed the text from
what he has said. To proceed with the
review of Holmes case. 1t contains a
concatenation of errors, each mounting
higher tlln the OtQef.
Further Facts.
S Fl was the beneficial holder of an
equitable estate in lSnd, the legal title to
which had been conveyed by deed to \
and his heirs in trust for 5 H. Sc N. G.
206. j. wishing to buy the estate, paid to
5 II a valuable consideration, for which
she directed the Trustee to convey the
legal title to and his heirs, and on his
doing 50 She delivered up the possession to
} the purchaser. In an action by S II to
recover possession from }, and to have Il
conveyance from him back of the legal
title, Held Ruf1in, j., Smith, G. j., and
Ashe concurring:
l. That the acts and dealings of 5 II
neither implied u trust that J should hold
to his own use, nor repelled the construc-
tive trust from his purchase with notice.
,. That J being 4 Trustee eX maeticio,
must convey the legal title to 5 II
,. That she being married woman
could have back the land and keep the
purchase money too.
The reasons assigned for the decision
are:
a.. That the transaction between II and
J amounted only to Il parOl agreement for
the sale of an interest in land and was
void
b. And S II being feme covert that
the contract was so absolutely void that
no equity could be raised against her
1t is quite evident, whatever else the
transaction may have been, that no at
tempt was made to sell or buy S HIS equi-
table estate, and no contract was made
for its future conveyance.
The purchaser paid the price for the
legal estate and got it from the Trustee
by direction of the beneficial holder. Now
undoubtedly the beneficial holder of an
equitable estate, which is the subject of Il
dry trust, can at any time direct the Trus-
tee to convey the legal title. Levin
Am Ed. Marg p. 595. And it is always the
beneficial holder, whether Of the legal or
equitable interest, who declares the trust
upon it. Ibid Marg p. 63
And one method of declaring a trust is
''by the transmission of the legal estate
when simple declaration will raise
trust" Smith, c. j., Shields VS.. Whita-
ker 50 N. G. 519.
Or other direct proof of intention, as
circumstances under which the transac-
ton took place, the subsequent mode of
treating the estate and the length of time
during which a particular mode of deal
ing with it was adopted by the parties.
Shelton vs.. Shelton Jones Eq. 2S4.
Well here in Holmes case there was a
transmission of the legal title ordered by
the holder of the beneficial interest, the
receipt by that holder of the purchase
money, and a delivery of possession by her
to the purchaser.
OF course this dealing between all the
parties, the Trustee, the cestui que trust
and the purchaser had some meaning:
was that meaning simply that the Trustee
should so transfer the legal title that the
purchaser might become trustee in his
stead? Manifestly not. The idea is re-
PEELED by the payment Of the price which,
IN itself, being done with the consent of
the beneficial holder and to her, raised a
trust in behalf of the purchaser.
1t is also repelled by order to the Trus-
tee to convey the title and the delivery of
possession. In obeying the direction the
Trustee committed no breach, and by con
sequence there could be no evil conduct
in the purchaser, for if he had notice of
the trust he had notice also that the cestui
que trust on valuable consideration had
discharged it.
Suppose when the Trustee conveyed the
legal title S. IL. had written to |: You
have paid me the purchase money, and by
my direction my Trustee has conveyed You
the legal estate and now deliver you the
possession Would this have been ian
attempt by parol to sell an interest in
land, or would it have been declaration
of trust, accompanying a transmutation
Of the possession, sufficiently manifested
under the statute of frauds!
If the latter, will not the dealings of the
partieS AS above set forth be a sufficient