Norris v. . McLam

10 S.E. 140, 104 N.C. 159

• Court: Supreme Court of North Carolina
• Decided: September 5, 1889
• Status: Published

Opinion

Shepherd, J.

— after stating the case: It is unnecessary to consider the correctness of his Honor’s rulings, inasmuch as we are of the opinion that the complaint does not state facts sufficient to constitute a' cause of action. It is the duty of this Court to examine the entire record, and if no cause of action is stated, to dismiss the suit ex mero motu. Johnson v. Finch, 93 N. C., 208, and the cases cited.

It is well settled “that in order to convert a deed absolute on its face into a mortgage, it must be alleged, and of course proved, that the clause of redemption was omitted by reason of ignorance, mistake, fraud or undue advantage.” Streator v. Jones, 1 Murph., 149; Bonham v. Craig, 80 N. C., 224; Egerton v. Jones, 102 N. C., 278.

There is an entire absence of any of these essential elements in the complaint, and the deed appears to have been written as the parties intended.

If, as is suggested by the testimony, the relations of mortgagor and mortgagee existed in respect to the land, at the time of the execution of the deed, and that, by reason of such relations, the transaction was oppressive and involuntary, it should have been so stated in the complaint. “ There must be allegata et probata, and under the new system, as under the old, the Court cannot take notice of any proof unless there be a corresponding allegation.” Pearson, C. J., in McKee v. Lineberger, 69 N. C., 239.

For these reasons the non-suit must stand.

Affirmed.