Norris v. . McLam , 104 N.C. 159 ( 1889 )

The plaintiff alleges that he executed on one Isham McLam, the ancestor of the defendants, a certain absolute deed in fee, conveying the land mentioned in the complaint; that, at the time of the execution of said conveyance, the plaintiff was indebted to the said McLam in the sum of sixty dollars, and that the said conveyance was intended as a mortgage; "that the plaintiff objected to the execution of the said conveyance in the form in which it was written, but that the said McLam said to him (that) it was a mere matter of form; that it was cheaper than a mortgage and that he, McLam, would reconvey the said land" to plaintiff upon the payment of the said sixty dollars. The plaintiff further alleges that the land is of much greater value than the debt, and that he has tendered the same and demanded a reconveyance. He prays to be permitted to redeem, and for "other and further relief." The answer denies all these allegations, and avers the full value was paid for the land. The statute of limitations was also pleaded, and the case was submitted to the jury. Upon intimations of his Honor in respect to this plea, the plaintiff submitted to a nonsuit and appealed. (160) It is unnecessary to consider the correctness of his Honor's rulings, inasmuch as we are of the opinion that the complaint does not state facts sufficient to constitute a cause of action. It is the duty of this Court to examine the entire record, and if no cause of action is stated, to dismiss the suit ex mero motu. Johnson v. Finch, 93 N.C. 208, and the cases cited.

It is well settled "that in order to convert a deed absolute on its face into a mortgage, it must be alleged, and of course proved, that the clause of redemption was omitted by reason of ignorance, mistake, fraud, or undue advantage." Streator v. Jones, 5 N.C. 149; Bonham v. Craig, 80 N.C. 224;Egerton v. Jones, 102 N.C. 278.

There is an entire absence of any of these essential elements in the complaint, and the deed appears to have been written as the parties intended.

If, as suggested by the testimony, the relations of mortgagor and mortgagee existed in respect of the land, at the time of the execution of the deed, and that, by reason of such relations, the transaction was oppressive and involuntary, it should have been so stated in the complaint. "There must be allegata et probata, and under the new system, as under the old, the court cannot take notice of any proof unless there be a corresponding allegation." Pearson, C. J., in McKee v. Lineberger,69 N.C. 239.

For these reasons the nonsuit must stand.

Affirmed.

Cited: Everett v. Raby, post, 481; Green v. Sherrod, 105 N.C. 198;Sprague v. Bond, 115 N.C. 533; Hall v. Lewis, 118 N.C. 515; Porter v.White, 128 N.C. 44; Locklear v. Bullard, 133 N.C. 263; Helms v. Helms,135 N.C. 167, 175; Newton v. Clark, 174 N.C. 394; Williamson v. Rabon,177 N.C. 305.

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