
    JOHN McWHIRTER, Administrator, v. T. A. McWHIRTER et al.
    (Filed 3 May, 1911.)
    1. Deeds and Conveyances — Wife’s Money — Purchaser — Title to Husband — Resulting Trusts — Proof Required.
    When a resulting trust for the wife is sought to be established upon the allegation that the husband purchased land with her money and took a deed to himself which is absolute in form and conveys the legal and equitable title to him, it is necessary that the trust be established by clear, strong and convincing proof.
    
      2. Same — Instructions Conflicting.
    When, the judge, in an action to declare a resulting trust in favor of the wife in lands purchased by the husband with her money, taking title by conveyance to himself, instructed the jury that the proof must be clear, strong and convincing, and, in another part of the charge, that a preponderance of the evidence is sufficient, the charge is conflicting and erroneous.
    3. Deeds and Conveyances — Resulting Trusts — Proof Required— Conflicting instructions — Presumptions—New Trial.
    When the judge in one part of his charge instructs the jury correctly and in another part incorrectly, as to the question of proof, it will be assumed that the jury acted upon the erroneous part, and a new trial will accordingly be awarded.
    Appeal by plaintiff from Long, J., at tbe October Term, 1910, OÍ MeCKLENBTJRG.
    Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Walker.
    
    
      Maxwell & Keerans for plaintiff.
    
    
      McCall & Smith for defendant.
    
   Waleer, J.

Tbis action was brought by tbe plaintiff, as administrator of W. C. McWhirter, for tbe purpose of having sold certain land, which is described in tbe complaint and alleged to belong to bis estate, for tbe payment of debts. Tbe defendant, Mrs. R. J. McWhirter, answered tbe complaint and averred that tbe land did not belong to W. C. McWhirter, although be bad tbe legal title thereto, for that be bad bought tbe same with her money and for her benefit, and be therefore held it in trust for her. An issue was submitted to tbe jury, as to tbe existence of tbe alleged trust, express or resulting, and tbe verdict was in favor of Mrs. McWhirter, tbe jury finding that W. 0. McWhir-ter bad purchased the lands with her funds and held tbe legal title in trust for her, having taken a deed for tbe land to himself, instead of to her, as be should have done. Judgment was entered upon the verdict and the plaintiff brings tbe case here by appeal to review tbe rulings of 'the Court, which be deems erroneous.

It is necessary to discuss but a single question, as there is an error in tbe charge of tbe court which entitles tbe plaintiff to another trial. Tbe court at first charged tbe jury correctly that as the deed to W. 0. McWhirter was absolute in form, and upon its face conveyed' the legal and equitable title to him, the defendant must establish the trust by clear, strong and convincing proof. Lehew v. Hervett, 138 N. C., 6; Taylor v. Wahab, 154 N. C., 219; Cobb v. Edwards, 117 N. C., 253. If the learned judge had stopped there, the charge, in this respect, would have been free from crrpr, but he afterwards told the jury when instructing them again upon the quantum of proof required to establish the trust, that a preponderance of the evidence in favor of it is sufficient. These two instructions were conflicting, and the jury are not supposed to be capable of deciding, as between them, which is the correct one, and we must, therefore, assume that they were influenced’in coming to a verdict by the erroneous one. Edwards v. R. R., 132 N. C., 99 (Anno. Ed.); Cressler v. Asheville, 134 N. C., 314; Williams v. Haid, 118 N. C., 481; Tillett v. R. R., 115 N. C., 662; Edwards v. R. R., 129 N. C., 78; Jones v. Insurance Co., 151 N. C., 56. For this error a new trial is ordered.

As to the trust, the law is well settled. “Where land is bought with the money of one person and is conveyed to another, the latter is trustee for the lender to the extent of the money so paid, without any express agreement to that effect.” Holden v. Strickland, 116 N. C., 185. But in Clements v. Insurance Co., at this term, we said that there is a strong presumption in favor of the correctness of a deed or other instrument as written and executed, and this fair and reasonable presumption will prevail, unless the party who alleges that it does not express the truth overcomes the presumption and shows to the contrary by satisfactory evidence which is clear, strong and convincing. It is for the jury to say whether the evidence is of this character. Lehew v. Hewett, supra. The rule which calls for that kind of evidence in such a case was adopted and was necessary for the safety of titles, and in order that contracts, deeds and other solemn instruments should not be lightly set aside or changed. The doctrine, as we have seen, has been extended and applied to a case in which it is attempted to show a parol trust, and thus virtually to nullify the deed, or, if the entire beneficial interest is not claimed, to amend or reform it in some way.

Tbe error of tbe court as to tbe quantum of proof is to be found in tbe defendant’s third prayer for instructions, wbicb was given to tbe jury. Tbe judge modified tbe first and second prayers in tbis respect and stated tbe correct rule, but inadvertently, we suppose, failed to amend tbe third prayer. However tbis may be, tbe jury were left with two conflicting instructions, and may have been misled by them. There are other errors assigned by tbe plaintiff, but we will not discuss them, as they may not be presented again.

New trial.  