Harrelson v. . Cox

178 S.E. 361, 207 N.C. 651, 1935 N.C. LEXIS 235

Opinion

Stacy, C. J.

We think there was error in dismissing the action as upon demurrer to the complaint. Where a mortgagee takes from his mortgagor a deed for the mortgaged premises, under circumstances such as here alleged, the transaction is open to investigation, with the burden of fairness upon the mortgagee. Hinton v. West, post, 708; Jones v. Williams, 176 N. C., 245, 96 S. E., 1036; Cole v. Boyd, 175 N. C., 555, 95 S. E., 778; Jones v. Pullen, 115 N. C., 465, 20 S. E., 624. In this jurisdiction the principle is often referred to as the “doctrine of McLeod v. Bullard ” 84 N. C., 516, approved on rehearing, 86 N. C., 210: “Where a mortgagee buys the equity of redemption of his mortgagor, the law presumes fraud, and the burden of proof is upon the mortgagee to show the bona jides of the transaction.”

We are not advised as to what admissions were made by counsel in response to the court’s interrogatories, but the complaint would seem to be good as against a demurrer. Dix-Downing v. White, 206 N. C., 567, 174 S. E., 451.

Reversed.