Moose, J.
In apt time defendants moved for nonsuit. As to the cause of action based on alleged nondelivery of the deed, the exception to the refusal to nonsuit is not assigned as error and has been abandoned. But as to the alternative cause of action alleging that the deed was procured by fraud and duress, the question of the sufficiency of the evidence is raised • — ■ Assignment of error No. 26. We do not approve the method used in preserving the exception; it is not in accordance with procedural rules. When we look to the substance of the assignment, the exception is brought forward. Since there must be a new trial in any event, we feel justified in the exercise of discretion and in the interest of justice to treat the assignment as based on exception to denial of nonsuit. By disposing of this question at the outset, discussion of other assignments will be simplified.
When considered in the light most favorable to the plaintiff, giving her the benefit of every reasonable inference to be drawn therefrom, the evidence is insufficient to malee out a
prima facie
case of fraud or duress. There is no evidence that defendant persuaded or even requested her father to execute the deed. There is not even an intimation that they discussed the matter beforehand or that she even knew he intended to execute the deed until he handed it to her. She was not present when the deed was prepared and signed. Its preparation was entirely under his direction. He had the land “run out” preparatory to making the deed. He deeded the land to the two persons who had stayed with him during the period of approximately ten years he had been a widower. Indeed, this daughter and grandson had been there all their lives. He was old, it is true ■ — ■ he was then 77. But there is no suggestion he was feeble or his mind was impaired. He had hardening of the arteries, spells with his stomach and occasional dizzy spells — conditions more or less common to old age. He lived to be 87, notwithstanding a serious accident in 1951. He attended to his own business affairs. There is no evidence that he relied on defendant for advice and guidance or that she exercised any dominating influence over, or imposed her will upon, him. It is reasonable to assume that she attended to household duties. She tended a cotton patch and raised chickens. Later she got a job and earned wages. She paid some of his bills, helped with taxes and defrayed his hospital and medical expenses. He had physical access to the deed for ten years prior to its recordation. The deed recited a valuable consideration of $500. It is reasonable to assume that he considered her constancy and devotion a more valuable consideration. It is true there was mutual
trust and confidence between them — they maintained a joint savings account.
The mere relation of parent and child does not raise a presumption of fraud or undue influence.
Walters v. Bridgers,
251 N.C. 289, 293, 111 S.E. 2d 176;
Davis v. Davis,
236 N.C. 208, 211, 72 S.E. 2d 414;
Gerringer v. Gerringer,
223 N.C. 818, 821, 28 S.E. 2d 501. In certain known and fiduciary relations, if there be dealing between the parties, on complaint of the party in the power of the other, or those succeeding to his rights, the relation itself raises a presumption of fraud as a matter of law.
McNeill v. McNeill,
223 N.C. 178, 25 S.E. 2d 615. But where no such relationship exists, no presumption of fraud arises.
Gerringer v. Gerringer, supra.
In the instant case defendant was not in such fiduciary relation with her father. It was a family relationship, not a fiduciary one. She exercised no power or control over him or his property. There is no evidence of overreaching or unfair dealing on her part.
Davis v. Davis, supra.
Wessell v. Rathjohn,
89 N.C. 377, presents a factual situation quite similar to the case at bar. A father, having two daughters, executed to one of them a deed not founded on a valuable consideration. After the death of the father the other daughter sought to set aside the deed on the ground of mental incapacity of grantor and undue influence on the part of grantee. The verdict favored defendant. In discussing the trial court’s ruling on a prayer for special instruction this Court said: “It is natural that the father should provide for his daughter: this is a proper and orderly thing to be done. It is what the paternal feelings of good men prompt them to do: it is what just men commend and the law tolerates. Why should the law cast suspicion upon such a transaction? When the transaction, the deed, is right in itself, such as the law tolerates and the common sense of men approves as just, reasonable and commendable, and there is the absence of the relation of suspicion founded on motives of policy, no adverse presumption arises; on the contrary, the law presumes such deed or transaction in all respects proper and just, until the contrary is made to appear. . . . (T) here must be evidence tending to show, not simply that there might have been, but that there was
mala fides.”
“Right or wrong, it is to be expected that a parent will favor the child who stands by him, and to give to him, rather than the others, his property. To defeat a conveyance under those circumstances something more than the natural influence springing from such relationship must be shown; imposition, fraud, importunity, duress, or something of that nature, must appear; otherwise that disposition of property which accords with the natural inclinations of the human heart must be sustained.”
Plemmons v. Murphey,
176 N.C. 671, 679, 97 S.E. 648.
Plaintiff contends that inadequacy of consideration alone is sufficient to withstand the motion for nonsuit. “The controlling principle established by our decisions is that inadequacy of consideration is a circumstance to be considered by the jury in connection with other relevant circumstances on an issue of fraud, but inadequacy of consideration standing alone will not justify setting aside a deed on the ground of fraud. However, if the inadequacy of consideration is so gross that it shows practically nothing was paid, it is sufficient to be submitted to the jury without other evidence.”
Garris v. Scott,
246 N.C. 568, 575, 99 S.E. 2d 750. In the
Garris
case the transaction was between strangers. There was evidence of advantage, overreaching and oppression in addition to inadequacy of consideration. Love and affection, recognition of kindness and care, and provision for the future of a child furnish adequate consideration as between parent and child, in the absence of evidence of fraud and duress.
Walters v. Bridgers, supra; Cannon v. Blair,
229 N.C. 606, 50 S.E. 2d 732. Services performed by one member of the family for another, within the unity of the family, are presumed to have been rendered in obedience to a moral obligation and without expectation of compensation.
Allen v. Seay,
248 N.C. 321, 323, 103 S.E. 2d 332. But this principle of law does not prevent a parent from compensating a child for such services, and does not render consideration for a compensating conveyance inadequate. In the
Walters
case defendant paid nothing for the conveyance, yet nonsuit was affirmed.
The trial court erred in denying the motion for nonsuit in the cause of action based on alleged fraud and duress.
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Moose, J.
In apt time defendants moved for nonsuit. As to the cause of action based on alleged nondelivery of the deed, the exception to the refusal to nonsuit is not assigned as error and has been abandoned. But as to the alternative cause of action alleging that the deed was procured by fraud and duress, the question of the sufficiency of the evidence is raised • — ■ Assignment of error No. 26. We do not approve the method used in preserving the exception; it is not in accordance with procedural rules. When we look to the substance of the assignment, the exception is brought forward. Since there must be a new trial in any event, we feel justified in the exercise of discretion and in the interest of justice to treat the assignment as based on exception to denial of nonsuit. By disposing of this question at the outset, discussion of other assignments will be simplified.
When considered in the light most favorable to the plaintiff, giving her the benefit of every reasonable inference to be drawn therefrom, the evidence is insufficient to malee out a
prima facie
case of fraud or duress. There is no evidence that defendant persuaded or even requested her father to execute the deed. There is not even an intimation that they discussed the matter beforehand or that she even knew he intended to execute the deed until he handed it to her. She was not present when the deed was prepared and signed. Its preparation was entirely under his direction. He had the land “run out” preparatory to making the deed. He deeded the land to the two persons who had stayed with him during the period of approximately ten years he had been a widower. Indeed, this daughter and grandson had been there all their lives. He was old, it is true ■ — ■ he was then 77. But there is no suggestion he was feeble or his mind was impaired. He had hardening of the arteries, spells with his stomach and occasional dizzy spells — conditions more or less common to old age. He lived to be 87, notwithstanding a serious accident in 1951. He attended to his own business affairs. There is no evidence that he relied on defendant for advice and guidance or that she exercised any dominating influence over, or imposed her will upon, him. It is reasonable to assume that she attended to household duties. She tended a cotton patch and raised chickens. Later she got a job and earned wages. She paid some of his bills, helped with taxes and defrayed his hospital and medical expenses. He had physical access to the deed for ten years prior to its recordation. The deed recited a valuable consideration of $500. It is reasonable to assume that he considered her constancy and devotion a more valuable consideration. It is true there was mutual
trust and confidence between them — they maintained a joint savings account.
The mere relation of parent and child does not raise a presumption of fraud or undue influence.
Walters v. Bridgers,
251 N.C. 289, 293, 111 S.E. 2d 176;
Davis v. Davis,
236 N.C. 208, 211, 72 S.E. 2d 414;
Gerringer v. Gerringer,
223 N.C. 818, 821, 28 S.E. 2d 501. In certain known and fiduciary relations, if there be dealing between the parties, on complaint of the party in the power of the other, or those succeeding to his rights, the relation itself raises a presumption of fraud as a matter of law.
McNeill v. McNeill,
223 N.C. 178, 25 S.E. 2d 615. But where no such relationship exists, no presumption of fraud arises.
Gerringer v. Gerringer, supra.
In the instant case defendant was not in such fiduciary relation with her father. It was a family relationship, not a fiduciary one. She exercised no power or control over him or his property. There is no evidence of overreaching or unfair dealing on her part.
Davis v. Davis, supra.
Wessell v. Rathjohn,
89 N.C. 377, presents a factual situation quite similar to the case at bar. A father, having two daughters, executed to one of them a deed not founded on a valuable consideration. After the death of the father the other daughter sought to set aside the deed on the ground of mental incapacity of grantor and undue influence on the part of grantee. The verdict favored defendant. In discussing the trial court’s ruling on a prayer for special instruction this Court said: “It is natural that the father should provide for his daughter: this is a proper and orderly thing to be done. It is what the paternal feelings of good men prompt them to do: it is what just men commend and the law tolerates. Why should the law cast suspicion upon such a transaction? When the transaction, the deed, is right in itself, such as the law tolerates and the common sense of men approves as just, reasonable and commendable, and there is the absence of the relation of suspicion founded on motives of policy, no adverse presumption arises; on the contrary, the law presumes such deed or transaction in all respects proper and just, until the contrary is made to appear. . . . (T) here must be evidence tending to show, not simply that there might have been, but that there was
mala fides.”
“Right or wrong, it is to be expected that a parent will favor the child who stands by him, and to give to him, rather than the others, his property. To defeat a conveyance under those circumstances something more than the natural influence springing from such relationship must be shown; imposition, fraud, importunity, duress, or something of that nature, must appear; otherwise that disposition of property which accords with the natural inclinations of the human heart must be sustained.”
Plemmons v. Murphey,
176 N.C. 671, 679, 97 S.E. 648.
Plaintiff contends that inadequacy of consideration alone is sufficient to withstand the motion for nonsuit. “The controlling principle established by our decisions is that inadequacy of consideration is a circumstance to be considered by the jury in connection with other relevant circumstances on an issue of fraud, but inadequacy of consideration standing alone will not justify setting aside a deed on the ground of fraud. However, if the inadequacy of consideration is so gross that it shows practically nothing was paid, it is sufficient to be submitted to the jury without other evidence.”
Garris v. Scott,
246 N.C. 568, 575, 99 S.E. 2d 750. In the
Garris
case the transaction was between strangers. There was evidence of advantage, overreaching and oppression in addition to inadequacy of consideration. Love and affection, recognition of kindness and care, and provision for the future of a child furnish adequate consideration as between parent and child, in the absence of evidence of fraud and duress.
Walters v. Bridgers, supra; Cannon v. Blair,
229 N.C. 606, 50 S.E. 2d 732. Services performed by one member of the family for another, within the unity of the family, are presumed to have been rendered in obedience to a moral obligation and without expectation of compensation.
Allen v. Seay,
248 N.C. 321, 323, 103 S.E. 2d 332. But this principle of law does not prevent a parent from compensating a child for such services, and does not render consideration for a compensating conveyance inadequate. In the
Walters
case defendant paid nothing for the conveyance, yet nonsuit was affirmed.
The trial court erred in denying the motion for nonsuit in the cause of action based on alleged fraud and duress.
Defendants except to the following portion of the charge: “Now, the burden of proof on that issue (first issue) is on the defendant Mrs. Saunders to convince you by the greater weight of the evidence that the deed was properly executed and delivered to her.”
The exception is well taken. Plaintiff has the burden of proving nondelivery. We dealt directly with this question in
Johnson v. Johnson,
229 N.C. 541, 50 S.E. 2d 569. This was a special proceeding for partition. Defendants pleaded sole seizin. By way of reply plaintiffs attacked the deed under which defendants claimed, and alleged that it was a forgery and had not been signed, sealed and delivered. It had been recorded. After a general discussion of “burden of proof” this Court addressed itself to the exact question:
“. . . . Manifestly, the burden of showing that the deed was a forgery devolved upon the plaintiffs under the pleadings in the case at bar for the reason that the nonexecution of the instrument by the supposed grantor constituted an essential element of their claim or cause of action. The reply of the plaintiffs disclosed the existence of
the alleged deed and the fact that it had been probated and registered. The probate and registration gave rise to the rebuttable presumption that the instrument had been signed, sealed, and delivered by the purported grantor.
Best v. Utley,
189 N.C. 356, 127 S.E. 337. Thus, the plaintiff would have suffered defeat on the issue as to the execution of the deed if no evidence had been offered on either side with respect thereto.
“This conclusion is sanctioned by repeated decisions of this Court holding that the burden of proving his assertion of nonexecution rests on a plaintiff who seeks to establish a claim to land upon an allegation that the grantor named in a probated and registered deed regular on its face did not in fact execute the instrument. Besides, the same cases clearly establish the rule that a party claiming title under such probated and registered deed can call to his aid the rebuttable presumption that the supposed grantor executed such deed whenever the instrument is subjected to attack on an allegation of nonexecution without regard to whether he be the plaintiff or the defendant. (Citing many authorities)
“The trial judge was understandably misled on the question of the burden of proof as to the execution of the deed in issue by a too literal reliance upon certain language in
Belk v. Belk,
175 N.C. 69, 93 S.E. 726;
Jones v. Coleman,
188 N.C. 631, 125 S.E. 406; and
Burton v. Peace,
206 N.C. 99, 173 S.E. 4.”
In the argument before this Court counsel for plaintiff, with commendable candor, admitted that the burden of the issue was upon plaintiff. But he insisted that the error was harmless, contending that there was no evidence of an intent on grantor’s part to deliver the deed, and that plaintiff was entitled to a peremptory instruction on the first issue. We do not agree.
“Delivery is essential to the validity of a deed of conveyance. Both the delivery of the instrument and the intention to deliver it are necessary to the transmutation of title.”
Elliott v. Goss,
250 N.C. 185, 188, 108 S.E. 2d 475. “The requisites to the valid delivery of a deed are threefold. They are: (1) An intention on the part of the grantor to give the instrument legal effect according to its purport and tenor; (2) the evidencing of such intention by some word or act disclosing that the grantor has put the instrument beyond his legal control, though not necessarily beyond his physical control; and (3) acquiescence by the grantee in such intention. (Citing many cases).”
Ballard v. Ballard,
230 N.C. 629, 633, 55 S.E. 2d 316. Presumption of delivery arises from registration, even after the death of the grantor, and in the absence of other evidence is sufficient to support a finding of delivery.
Cannon v. Blair, supra.
We think there was sufficient evidence of intent to deliver without resort to the presumption. Intent is an act or emotion of the mind and is usually not capable of direct proof. It is usually shown by the acts and declarations of the intender when considered in the light of circumstances known to him. That Charlie Overman had the land surveyed, caused the deed to be prepared, signed it, manually delivered it to defendant, permitted her to put it with her other valuable papers, and for ten years made no attempt to retrieve it or interfere with her access to and possession of it, though he could have physically retaken it, is strong evidence of his intent to deliver the deed according to legal definition of that term.
Questions raised by the further assignments of error may not recur when the cause is tried again. For this reason we do not discuss them here.
In the cause of action to set aside and cancel the deed from C. S. Overman to Maggie Beatrice Overman (Saunders) for nondelivery, there will be a
New Trial.