AVITT v. SMITH. There is error. Whatever interest the plaintiff may have had in the land, whether legal or equitable, she conveyed in the mortgage subject to her right to redeem until foreclosure. It cannot be that, because she conveyed both her legal and equitable estate in the mortgage, the mortgagee took her whole estate absolutely. A mortgage is only a mortgage and not an absolute conveyance, and necessarily carries with it the right of the debtor to redeem the estate conveyed at any time before foreclosure; and the mortgagor is entitled to the possession of the land conveyed until the mortgagee forecloses, or by lawful demand or by due process of law enters. The mortgagees here are not seeking to take possession. It may be that they knew, at the time of the execution of the mortgage, of the condition of the title to the land, and on that account inserted the words "legal and equitable estate" in its provisions. New Trial. R. S. AVITT v. J. W. SMITH, Administrator of A. R. T. Avitt, Deceased. Post Mortem Claim-Services Rendered Parent. 1. The law does not look with favor on after death charges for services rendered to a decedent in the absence of some agreement by the parties before the death. 2. In the absence of some contract, express or implied, showing an intention on the part of one to charge and the other to pay for services rendered, the presumption that the law raises of a promise to pay for services performed, is rebutted by the near relationship of the parties, such as parent and child, step-parent and child, grandparent, &c. 3. In an action against the administrator of plaintiff's mother for services rendered her before death, the plaintiff testified that he lived with her all his life, and for twenty-four years conducted her AVITT v. SMITH. farm and attended to all her business for her; that she, one sister and himself constituted the family; that he supported them and they supported him, and that they all consumed together what they made. A witness testified that he heard the mother say that she wanted the sixty acres of land for his services; Held, that a non-suit was proper. From a CIVIL ACTION, tried before Norwood, J., and a jury, at Spring Term, 1897, of STANLY Superior Court. judgment of non-suit the plaintiff appealed. Messrs. Bennett & Bennett, for plaintiff (appellant). FAIRCLOTH, C. J.: The plaintiff brought this action to recover for services rendered his mother, the intestate of defendant. The plaintiff testified that he lived with his mother all his life, and that from 1871 to 1895 he ran her farm and rendered her all the service he could and protected her, and in a general way attended to all her business. He, his mother and one sister, composed the family, and they all worked. He says: "I supported them and they supported me. We all consumed together what we made on the place." Another witness said he heard the mother say, in the presence of the plaintiff, that "she wanted the plaintiff to have 60 acres of her land in consideration for his services in taking care of her." His Honor's opinion being against the plaintiff, he submitted to a non-suit and appealed. In ordinary dealings the law implies a promise to pay for services rendered by one for another. This presumption may be rebutted by the relations of the parties, as father and child. stepfather and child and grandfather and child, &c. In the absence of some contract, express or implied, showing an intention on the part of one to charge and the other to pay, the presumption is rebutted by the relation GREEN V. BENNETT. ship. The law does not look favorably on those after death charges, in the absence of some agreement by the parties before death. Hudson v. Lutz, 50 N. C., 217. The old lady's remark about the 60 acres of land showed her kind disposition, but fails to furnish any evidence of a contract or promise to pay. There was not sufficient evidence to go to the jury. Dodson v. McAdams, 96 N. C., 149. An analagous case was recently decided in this court where the reasoning is more fully stated. Callahan v. Wood, 118 N. C., 752, and cases cited. Affirmed. S. D. GREEN et als. v. D. N. BENNETT et als. Action to Recover Land-Husband and Wife-Married Woman's Deed-Execution and Acknowledgment of DeedEstoppel by Judgment. 1. In the conveyance of land by a wife with the assent of her husband, as allowed by Section 6, Article 10, of the Constitution, the husband and wife should execute the same deed. 2. No title is conveyed by a married woman's deed of her separate property where her husband's consent thereto was not proved and recorded until after the death of the wife. 3. Recitals in a decree for the partition of lands, as to the ownership thereof, are conclusive upon the parties to such proceedings and all persons claiming under them. ACTION to recover land, tried before Robinson, J., and a jury, at Spring Term, 1895, of STANLY Superior Court. The facts are set out in the opinion. There was a verdict, followed by judgment for the plaintiffs, and defendants. appealed. GREEN v. BENNETT. Messrs. Brown & Jerome, for plaintiffs. Messrs. S J. Pemberton and MacRae & Day, for defendants (appellants). MONTGOMERY, J.: The plaintiffs, who are the heirs at law of Rosani Smith, claim title to and demand the possession of the two tracts of land described in the complaint, one containing three acres, and the other a one-eighth interest in a tract of one acre and a mineral spring on it. The defendant, Foreman, sets up title to the same through a deed to Rosani Smith to himself, dated February 14, 1881, and the other defendants claim the possession under Foreman. The defendant, Foreman, also claims title to the one-eighth interest in the one acre tract by virtue of a decree of the Superior Court of Stanly county, dated the 17th of November, 1888, in a case entitled C. C. Foreman v. Hezekiah Hough and others. The husband of Mrs. Smith did not sign the deed, nor does his name appear anywhere in it. On the back of the deed, on the day of its execution, the husband, Smith, made an endorsement in the following words: "I, John Smith, husband of R. B. Smith, the maker of the within deed, do hereby consent to the same." (Signed and sealed by John Smith, June 14, 1881, and witnessed by J. P. Austin.) The deed was registered on the 21st of September, 1882; the alleged consent of the husband was proved and registered on September 20th, 1894, and after the death of the wife, which took place in 1888. His Honor refused to allow the deed to be received as evidence of defendant's title and right of possession; and his ruling was correct. In the argument here, the counsel of defendants frankly stated that the ruling of the court below was proper unless the court should reconsider and reverse its former decisions bearing upon the power given to married women to convey their GREEN V. BENNETT. separate property under Section 6 of Article 10 of the Constitution and in the manner prescribed in Section 1256 of The Code. It is not necessary to the decision of this case for us to discuss again the effect of the endorsement made by the husband on the deed; whether that act was sufficient execution of the deed. The Constitution, Article 10, Section 6, provides that a married woman may convey her separate property "with the written assent of her husband" as if she was sole; and it was decided by this court in Ferguson v. Kinsland, 93 N. C., 337, and in other cases that the husband should execute the same deed with the wife. The reason assigned for that requirement in the cases, above referred to "was to afford her (the wife) his (the husband's) protection against the wiles and insidious act of others." But the defendant also offered the deed as color of title. The Statute of Limitations did not run against Mrs. Smith; Section 141 of The Code. She died in 1888 and this action was begun in 1891-less than seven years after her death. In addition to the claim of the defendants under the deed from Rosina Smith to the one-eighth interest in the one acre tract, on which is the spring of water, they set up an estoppel by record of the Superior Court of Stanly county in a proceeding instituted by Foreman, the plaintiff there, one of the defendants here, against Hezekian Hough, Sarah (D.) Green and M. C. Underwood, as tenants in common, to sell the land for partition. It was stated in the judg ment in that proceding that it was admitted that Foreman owned by purchase and deed of conveyance in fee simple five-eights of the same, one-eighth of which was the Rosani Smith interest, the subject of this action. M. C. Underwood and Sarah D. Green, who were the owners of oneeighth interest each in the one acre tract, were parties to the proceeding instituted for its sale in partition. Sarah D. Green is also a plaintiff in this action and is estopped |