Opinion
(Filed September 18, 1901.)
DEEDS — Mortgages — Redemption.
To convert a deed absolute on its face into a mortgage, it must appear that the clause of redemption was omitted through ignorance, mistake, fraud or undue influence.
ACTION by D. B. Frazier against Penina Frazier and others, heard by Judge Frederick Moore and a jury, at November Term, 1900, of the Superior Court of GREENE County. From a judgment for the defendants, the plaintiff appealed.
T. B. Womack, for the plaintiff.
H. G. Connor Son, for the defendants.
To convert a deed absolute on its face into a mortgage, it must appear:
That the clause of redemption was omitted through ignorance, mistake, fraud or undue influence. There is no evidence of this; on the contrary the plaintiff's testimony is that he declined to execute a mortgage.
To cause a deed to be decreed in trust, there must be strong evidence of such agreement, and proof of such intention must be made not by simple admission of the parties thereafter, but there must be proof of facts and circumstances dehors the deed inconsistent with the idea of absolute purchase, otherwise the solemnity of deeds would always be subject to "the slippery memory of witnesses." Kelly v. Bryan, 41 N.C. 283; Porter v. White, 128 N.C. 42. If the transaction is a sale with power to repurchase, there is no equity to interfere. Adam's Eq., 111, and cases there cited.
Here, such circumstances are wholly lacking. On the contrary, the grantee went into possession at the end of the year, it being already rented out, and put up buildings, and cleared one-half of the land for cultivation, and he and his devisees have been in undisturbed possession since 1883.
There is an allegation that the grantee made a cotemporaneous parol agreement to reconvey upon repayment of the purchase-money, but there is no evidence of such repayment. The plaintiff relies upon an allegation that the rents and profits should be applied to repayment of the purchase-money, but there is no proof whatever of such agreement.
In sustaining a demurrer to the evidence there was
No error.