
    JAMES J. PRICE v. T. H. GASKINS, Ex’r of D. R. WHITFORD.
    Where an answer admitted that a deed for land, absolute upon its face, had been made as charged in the bill upon a parol trust that it should be a security for the payment of a sum of money, but relied upon the lapse of ten years since its execution as a defence against an enforcement of such contract, held that, as the. complainant had all the while been in possession of the land, the defence was not valid.
    (Observations upon the burden of proof, and upon the presumptions and1 facts of the case.)
    Bill [praying for a reconveyance of land and for other relief, filed to Spring Term, 1866, of the Court of Equity for Craven, and set for hearing upon bill, answer and proofs, at Spring Term, 1867, and transferred to this Court.
    The bill stated that in 1854 the complainant had purchased of one Eeel a tract of land, (describing it) and given a bond with one Solomons and the defendant’s testatorj as sureties, and received a deed; that afterwards Whitford took up the note, and it was agreed that complainant should convey the land to him as security for the price, but that, owing to his being an ignorant man, the deed was made an absolute one. After setting forth that the complainant had been, in possession of the land ever since the conveyance from Eeel, and stating some negotiations with Whitford which are not important to the understanding of the opinion, the bill set forth a tender of the money due to Whitford, and his refusal to receive it.
    The answer admitted that the deed was intended as a security for the money paid by Whitford to Eeel, but insisted that the lapse of time was a bar to the claim, and besides that there had been an express abandonment of the claim by the complainant.
    Some evidence was taken by both parties, but it is not necessary to set it forth.
    
      Hanghton, for the complainant.
    No counsel contra.
    
   Pearson, C. J.

The bill is filed to have a deed for land absolute on its face declared to be only a security for the payment of money, on the allegation of a parol agreement to that effect. The agreement is admitted by the defendant, and he puts his refusal to reconvey, upon payment of the principal and interest on two grounds:

1. That the matter has stood over for more than ten years, which raises a presumption that the plaintiff had abandoned his equity. This ground is fully met by the fact that the plaintiff has during all that time continued in possession of the land; so there is nothing for the presumption to act on, and if there was any presumption it would be the other way. Abandonment of an equity can only be presumed when the party holding the legal title has been in possession.

2. The defendant further insists that there has been an express abandonment, for that the plaintiff, finding he was not able to pay the money, agreed that he would give up his equity, and the evidence of the debt was therefore cancelled by consent of the parties. The onus of proving this express abandonment is upon the defendant; and, after a careful examination of the. evidence in the cause, the court declares that the defendant has not proved the allegation.

It is not deemed necessary to go into a discussion of the evidence. We will merely observe that it would require very strong evidence to bring us to the conclusion that, after being in possession for so many years, the plaintiff, no compulsory process having been taken out against him, such as an action of ejectment or suit for the debt, had agreed in 1865 to surrender his right of redemption without any stipulation as to his being allowed to remain in possession during the rest of his, life time, he being then old and infirm, simply because he was not able then to pay the debt and felt that he ought either to pay it or give up his right to the land; especially as the land is worth more than the debt and accumulated interest, as we infer from the eagerness of the defendant to hold on to it.

The Master will report the amount due for principal and interest up to the time of the tender in November, 1865 ; and there will be a decree that, upon that amount being paid into office for the use of the defendant, he execute a deed to the plaintiff, the deed to be approved of by the Master. The plaintiff is allowed his costs.

Per Curiam.

Order accordingly.  