
    JANE CULBRETH v. M. M. HALL and J. E. WILSON.
    (Filed 16 October, 1912.)
    1. Deeds and Conveyances — Fraud—Mortgages—Evidence—Nonsuit.
    In an action to convert a deed into a mortgage on the ground of fraud in its procurement, there was evidence tending to show that the plaintiff was an illiterate colored woman, working for the defendant as a “washerwoman”; that she had purchased the land in question with the understanding that the defendant would lend her the balance of the purchase price, to be secured by a mortgage thereon, and that the deed was written by a notary public, the defendant’s son, who also probated it, and was signed by the plaintiff upon being misled to believe that it was the mortgage agreed upon; that the plaintiff remained in possession for twelve months without any demand for rent, and listed the lands for taxes and claimed it as her own: Held, a motion for a non-suit was properly denied.
    2. Deeds and Conveyances — Evidence Dehors — Fraud—Burden of Proof.
    In an action to convert a deed into a mortgage on the ground of fraud in its procurement: Held, in this case, the plaintiff’s possession without demand upon her for rent, and the gross inadequacy of the price, were inconsistent with the defendant’s claim of absolute ownership, and is evidence dehors the deed; if such evidence was required.
    3. Pleadings — Lis Pendens — Notice.
    A complaint containing the names of the parties, the object of the action to set aside a deed to lands for fraud in its procurement, given when a mortgage to secure the balance of the purchase price of the lands should have been executed, and a description of the lands, is a Us pendens, and is notice to a subsequent purchaser without the necessity of filing a separate and formal notice.
    
      4. Justices of the Peace — Title to Lands — Jurisdiction—Judgment— Superior Court — Estoppel.
    A judgment of a justice of the peace in a summary action of ejectment wherein the title to the lands is controverted by the answer does not estop the plaintiff, in his action theretofore brought in the Superior Court, to convert the deed to the lands in question into a mortgage on the ground of fraud. The proceedings before the justice are void upon their face, in view of the title therein set up by the defendant, and in the absence of any adjudication of tenancy by the justice; and the judgment of the Superior Court, having assumed jurisdiction over the whole subject-matter, is final.
    5. Landlord and Tenant — Mortgagor in Possession — Demand — Ejectment — Justice’s Court — Jurisdiction.
    The landlord and tenant act does riot apply to a mortgagor who is allowed to remain in possession, and on demand, after default, refuses to surrender possession; and its provisions cannot be extended by any contrivance so as to give to the mortgagee the benefit of summary proceedings in ejectment, in a court of a justice of the peace.
    6. Deeds and Conveyances — Fraud—Mortgages—Liens—Rents and Profits — Measure of Damages.
    The plaintiff being successful in her action to convert a deed into a mortgage to secure a loan for the purchase of land, wherein the right of redemption is found to exist, is entitled to recover the entire estate in the property, subjct to the amount of the lien and interest, upon which amount the rents and profits for the period of her wrongful “ouster” are to be credited.
    Appeal by defendant from Carter, J., at July Term; 1912, of SAMPSON.
    Civil action. These issues were submitted:
    1. Was Jane Culbretb induced to sign tbe deed to M. M. Hall, instead of a mortgage, by tbe fraud of defendant M. M. Hall, as alleged in tbe complaint? Answer: Yes.
    2. What amount did defendant Hall pay Melvin at tbe time tbe deed was executed by Melvin to tbe plaintiff, Jane Cul-bretb? Answer: $319.
    3. Did tbe defendant Wilson have legal notice of plaintiff’s cause of action, by her complaint on file as a Us pendens, prior to tbe registration of bis said deed for said lands? Answer: Yes.
    
      4. Is plaintiff estopped by the proceedings and judgment of R. H. Hubbard, J. P.? Answer: No.
    ' 5. What damages has plaintiff sustained by reason of the defendant Hall failing to permit the plaintiff to redeem said land and wrongfully conveying same to his codefendant, Wilson? Answer: $361.17.
    From the judgment rendered the defendants appealed.
    
      George F. Butter for plaintiff.
    
    
      Faison & Wright for defendants.
    
   Brown, J.

This action is brought to convert a deed into a mortgage, upon the ground of fraud, the plaintiff averring that she was induced by the fraud of the draftsman to sign the instrument, thinking it was a mortgage, instead of an absolute deed.

We have examined the eighteen assignments of error, and find nothing in the record that justifies us in directing another trial.

1. It is contended that his Honor should have sustained the motion to nonsuit.

The plaintiff’s evidence tends to 'prove 'that she purchased a dwelling-house and lot from one Melvin and owed him a balance of $319 on it; that the property was worth about $700; that she aj)plied to defendant Hall for a loan of $319; that after some “chaffering,” defendant agreed to lend plaintiff $319 on two years credit at interest, and that Hall paid said sum to Melvin for her, and Melvin executed a deed to plaintiff.

The deed from plaintiff to Hall was written by his son, James Hall, a notary public, who also probated it. The plaintiff testifies positively that the transaction was a loan and not a sale, and .that the notary fraudulently substituted an absolute deed for a mortgage. There is abundant evidence to support the plaintiff’s own testimony.

It is in evidence that she is an illiterate, ignorant colored woman of excellent character, and the “washerwoman” for Hall’s family; that she had purchased the property from Melvin and made payments on it; that the exact sum she obtained from Hall was the sum she owed Melvin; that Hall agreed to lend it to ber for two years; tbat plaintiff remained in possession for twelve months, without any demand for rent; that she listed the property for taxes, and claimed it as her own. The motion to nonsuit was properly denied.

2. It is contended his Honor erred in not charging the jury that there must be evidence “dehors the deed” before it can be set aside. His Honor charged the jury that the plaintiff must sustain her allegations not only by the greater weight of evidence, but by evidence clear, strong, cogent, and convincing.

The theory upon which this case was tried was that the defendant Hall fraudulently and ■ falsely substituted an absolute deed for a mortgage, and took advantage of plaintiff’s ignorance.

The gravamen of the action is a pure fraud and not mutual mistake. In view of this, it may be open to doubt as to whether his Honor did not err on the side of the defendants as to the quantum of proof.

In Harding v. Long, 103 N. C., 1, the subject is elaborately discussed by Justice Avery, and it is held that where it is sought to have a deed declared void because its execution was obtained by false and fraudulent representations of the grantee, the degree of proof, as stated by his Honor in the case at bar, is not required.

We think his Honor’s charge under the facts of this case is not justly open to exception by the defendants. Cobb v. Edwards, 111 N. C., 245; Avery v. Stewart, 136 N. C., 426; Ely v. Early, 94 N. C., 1; Wilson v. Land Co., 77 N. C., 447.

Besides, there are facts in evidence dehors the deed, and 'inconsistent with the claim of absolute ownership upon the part of Hall, such as gross inadequacy of price, possession retained by plaintiff and no demand for rent. Kelly v. Bryan, 41 N. C., 287.

3. It is contended that his Honor erred, in holding that the defendant Wilson had legal notice of the plaintiff’s equity. His Honor correctly directed the jury upon the record evidence to answer the third issue “Yes.” The summons was issued arid a duly verified complaint filed on 13 January, 1911. The deed from Hall to Wilson was not probated or registered, nor is there any proof of its delivery until 16 January, 1911.

The complaint has all the requisites of a lis pendens, and contains the names of the parties, the object of the action, and a description of the land to be affected. It was, therefore, unnecessary to file a separate and formal notice. Arrington v. Arrington, 114 N. C., 151; Collingwood v. Brown, 106 N. C., 362.

4. It is contended further that a summary proceeding in ejectment before a justice of the peace operates as an estoppel and precludes the plaintiff from prosecuting this, action. The record shows that the proceeding aforesaid was commenced „ on 20 February, 1911, and this action was commenced and the complaint filed on 13 January, 1911.

In the. summary proceeding the defendant, Jane Oulbreth, pleaded that the justice of the peace had no jurisdiction, for that the title to real estate is brought into controversy, and she set out in her answer the pendency of this suit in the Superior Court of Sampson County, averring all of the several facts which are alleged in her complaint in this action.

There is no evidence that she ever attorned to Hall and no claim by Wilson that she ever attorned to him. On the contrary, she stoutly denied any tenancy, but averred that she went into possession as a purchaser from Melvin and has never surrendered that possession to any one.

It is to be observed that the justice of the pe'ace did not find it a fact that Jane was a tenant of either Hall or Wilson, but, without any such adjudication, simply ordered that she be removed from the premises.

It is contended by the counsel for the plaintiff that this summary proceeding was a part of the fraudulent scheme to “oust” the plaintiff from her property, and there is color for such allegation; but in our view the whole proceeding was void on its face, in view of the plea of title set up by the defendant in the said proceeding, and in the absence of any adjudication of tenancy by the justice of the peace. It appears from that record that the justice did not pass on that question, but simply directed the removal of Jane from her property.

The Superior Court had prior to this assumed jurisdiction over the whole subject-matter, as well as over the persons interested, and its judgment is necessarily final. • .

In speaking of estoppel arising from tbe possession of landlord and tenant, Mr. Justice Hoke says: “It is incident to tbe tenure and the enjoyment of tbe right, after tbe relationship has ended and tbe enjoyment has ceased in tbe one .case, or the possession has been surrendered in the - other, the question is then at large, and it is open to tbe tenant to show tbe truth of tbe matter.” 144 N. C., 514.

It is settled that tbe landlord and tenant act does not apply to a mortgagor who is allowed to remain in possession, and, on demand after default, refuses to surrender possession; and tbe provisions of that act cannot be extended by any contrivance so as to give to tbe mortgagee tbe benefit of having summary proceedings. Greer v. Wilbar, 72 N. C., 593; McCombs v. Wallace, 66 N. C., 481.

5. There are some exceptions relating to tbe fifth issue in respect to tbe measure of damage which it is not necessary to consider. We think bis Honor applied tbe proper rule of damage in tbe event that tbe plaintiff bad lost her equity of redemption by tbe fraudulent conduct of Hall; but that is not tbe case, for she has recovered her entire estate in tbe property as against both of these defendants, subject to tbe lien of $319 and interest. Therefore, she is not entitled to recover the value of her equity of redemption as assessed under the fifth issue; but she is entitled to recover of these defendants tbe rents of the property from tbe date when she was “ousted” up to tbe time when it shall be restored to her, together with such other actual damages as she may bav.e sustained by reason of her wrongful “ouster,” which sum will be credited upon tbe $319.

At tbe next term of tbe Superior Court tbe presiding judge will submit an issue in order that such damages and rents may be ascertained.

Tbe judgment of tbe Superior Court is modified and affirmed.

Tbe costs will be taxed against tbe defendants.

Affirmed.  