Clarkson, J.
From the admission of defendants, the plaintiffs were entitled to the possession of the land in controversy unless the defendants’ contentions were correct, and there was competent evidence to support them.
The main contentions of plaintiffs, as we interpret them, are:
(1) “All the evidence introduced showing defendants’ chain of title was introduced for the purpose of showing title from common source, and that plaintiffs’ title from that source is superior to the defendants’ title [522] from tbat source, and evidence restricted to that purpose;” The court below refused to restrict the evidence, and in this we think there was no error.
(2) The contention of plaintiffs was also to the effect that the inventory of James W. Draughan, executor of Wells Draughan, introduced by defendants was incompetent as bearing on the written contract as set up by defendants by Wells Draughan to Richard H. Jones and his heirs and assigns; that upon payment of the purchase money notes to Thomas Sears, a conveyance would be made to Richard H. Jones and his heirs and assigns. This evidence was admitted by the court below, and in this we think there was no error.
The inventory was filed by the executor under the provisions of chapter 113, Laws 1868, which required the executor under oath within three months to return to the clerk an inventory of the real estate, etc.
The recitals in the conveyances, and other evidence, tend to show: That Wells Draughan, who owned the land in controversy, made a will which bears date of 17 February, 1870 (codicils 8 March, 1870, and 11 May, 1871). Said will and codicils were duly probated 24 September, T872.
The seventh item of his will devised the land in controversy to Thomas Sears and his heirs and assigns, but “in case the said Thomas Sears should die without a lawful heir of the body, the said tract of land shall be divided among the surviving heirs of the said Delphia, Sears.” Thomas Sears died without lawful heirs in April, 1926. The plaintiffs in this action are the surviving heirs of Delphia Sears. The defendants admit that the deed of James W. Draughan, the executor of Wells Draughan, conveying the land in controversy is inoperative, as it purports to do, to pass title to Richard H. Jones and his heirs and assigns. The bond for title was not recorded. C. S., 91; Taylor v. Hargrove, 101 N. C., 145.
That a written contract or bond for title, as required by law, was made by Wells Draughan before he died to convey the land in controversy to Richard H. Jones and his heirs and assigns upon the payment of certain purchase-money notes, which were to be paid by Jones to Thomas Sears, who, under section 7 of the will, as above set. forth, would have had an interest in the land in controversy. That there was an ademption of the legacy (King v. Sellars, 194 N. C., 533), by the bond for title being made by Wells Draughan before he died and after his will was made, to Richard H. Jones and the notes were endorsed to the grandson, Thomas Sears, mentioned in Item 7 of the will in lieu of the legacy. That the notes came into the hands of the executor, who collected them and turned the proceeds over to Thomas Sears and made [523] tbe deed set forth in the statement of facts wbicb is inoperative as the written contract or bond for title was never recorded as required by law.
That Richard H. Jones, and those who claim under him, have been in the quiet and undisturbed possession of the land in controversy since 1872 under the written contract or bond for title. That diligent search was made for the written contract or bond for title, which could not be found. The defendants’ counterclaim is to remove plaintiffs’ claim as a cloud upon defendants’ title, which is not barred by the statute of limitations, and the-plaintiffs are not the owners and entitled to the land in controversy.
The jury found that the contract or bond for title was made as the defendants alleged, that the notes were executed as the defendants allege; that the purchase money was paid to the legal holder of the notes as the defendants alleged; that the defendants have been in quiet and undisturbed possession of the land since 1872 under the contract. On these findings the court below found that the defendants’ counterclaim to remove cloud on title was not barred by the statute of limitations, and that the plaintiffs were not the owners of the land.
The principle is well settled in this State and elsewhere that where both parties claim title under the same grantor, it is sufficient to prove a title derived from him without proving his title, as neither party can deny such title. The plaintiffs, in attempting to prove their own title, and in order to connect defendants’ title with a common source, introduced the James W. Draughan, executor, deed and the other conveyances set forth in the record, which contained certain recitals. ■ Plaintiffs contend that the evidence should be restricted.
We said in Cook v. Sink, 190 N. C., at p. 625: “They cannot ‘blow hot and cold in the same breath.’ Any other view would be inequitable and unconscionable. Plaintiff or the other devisees cannot take inconsistent positions. ‘Upon the principle similar to that applied to persons taking under wills, beneficiaries under a trust are estopped, by claiming under it, to attack any of its provisions. . . . So, also, one who accepts the terms of a deed or other contract must accept the same as a whole; one cannot accept part and reject the rest.’ Bigelow on Estoppel, 6 ed., p. 744; Fort v. Allen, 110 N. C., 191; Chard v. Warren, 122 N. C., 86; Freeman v. Ramsey, 189 N. C., 790”; Adams v. Wilson, 191 N. C., at p. 395.
The deed from James W. Draughan, executor, dated 13 November, 1872, to Richard BE. Jones, and his heirs and assigns, introduced by plaintiffs, have these recitals: “Witnesseth, that whereas the late Wells Draughan gave the said Richard H. Jones an obligation binding him, the said Wells Draughan, his heirs, executors and administrators to execute and deliver to said Richard H. Jones, his heirs and assigns a [524] good and fee-simple deed to tbe following described tract of land, upon the payment to him the said "Wells Draughan or his executor or administrator of three separate notes of five hundred dollars each, bearing interest from 1 January, 1870, and due respectively 1 January, 1871, 1 January, 1872, 1 January, 1873; and whereas the said R. H. Jones has paid off and satisfied said notes.”
The recitals in the other conveyances introduced by plaintiffs, speak of the land “being a part of the tract purchased by said Jones of Wells Draughan, deceased,” and “the tract of land on which R. H. Jones now resides, purchased by him of the late Wells Draughan, with the exception of the part sold to Thomas P. Braswell this day.”
Item 7 of the will of Wells Draughan says “Richard Jones now lives on said land.”
We will not discuss whether the recitals in the conveyance introduced by plaintiffs to connect defendants’ title with a common source was an estoppel as to them, as defendants made certain admissions of record and the action was tried out on the theory that the recitals were some competent evidence in ancient documents, and the competency of these recitals seems to be the crux of this action.
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Clarkson, J.
From the admission of defendants, the plaintiffs were entitled to the possession of the land in controversy unless the defendants’ contentions were correct, and there was competent evidence to support them.
The main contentions of plaintiffs, as we interpret them, are:
(1) “All the evidence introduced showing defendants’ chain of title was introduced for the purpose of showing title from common source, and that plaintiffs’ title from that source is superior to the defendants’ title [522] from tbat source, and evidence restricted to that purpose;” The court below refused to restrict the evidence, and in this we think there was no error.
(2) The contention of plaintiffs was also to the effect that the inventory of James W. Draughan, executor of Wells Draughan, introduced by defendants was incompetent as bearing on the written contract as set up by defendants by Wells Draughan to Richard H. Jones and his heirs and assigns; that upon payment of the purchase money notes to Thomas Sears, a conveyance would be made to Richard H. Jones and his heirs and assigns. This evidence was admitted by the court below, and in this we think there was no error.
The inventory was filed by the executor under the provisions of chapter 113, Laws 1868, which required the executor under oath within three months to return to the clerk an inventory of the real estate, etc.
The recitals in the conveyances, and other evidence, tend to show: That Wells Draughan, who owned the land in controversy, made a will which bears date of 17 February, 1870 (codicils 8 March, 1870, and 11 May, 1871). Said will and codicils were duly probated 24 September, T872.
The seventh item of his will devised the land in controversy to Thomas Sears and his heirs and assigns, but “in case the said Thomas Sears should die without a lawful heir of the body, the said tract of land shall be divided among the surviving heirs of the said Delphia, Sears.” Thomas Sears died without lawful heirs in April, 1926. The plaintiffs in this action are the surviving heirs of Delphia Sears. The defendants admit that the deed of James W. Draughan, the executor of Wells Draughan, conveying the land in controversy is inoperative, as it purports to do, to pass title to Richard H. Jones and his heirs and assigns. The bond for title was not recorded. C. S., 91; Taylor v. Hargrove, 101 N. C., 145.
That a written contract or bond for title, as required by law, was made by Wells Draughan before he died to convey the land in controversy to Richard H. Jones and his heirs and assigns upon the payment of certain purchase-money notes, which were to be paid by Jones to Thomas Sears, who, under section 7 of the will, as above set. forth, would have had an interest in the land in controversy. That there was an ademption of the legacy (King v. Sellars, 194 N. C., 533), by the bond for title being made by Wells Draughan before he died and after his will was made, to Richard H. Jones and the notes were endorsed to the grandson, Thomas Sears, mentioned in Item 7 of the will in lieu of the legacy. That the notes came into the hands of the executor, who collected them and turned the proceeds over to Thomas Sears and made [523] tbe deed set forth in the statement of facts wbicb is inoperative as the written contract or bond for title was never recorded as required by law.
That Richard H. Jones, and those who claim under him, have been in the quiet and undisturbed possession of the land in controversy since 1872 under the written contract or bond for title. That diligent search was made for the written contract or bond for title, which could not be found. The defendants’ counterclaim is to remove plaintiffs’ claim as a cloud upon defendants’ title, which is not barred by the statute of limitations, and the-plaintiffs are not the owners and entitled to the land in controversy.
The jury found that the contract or bond for title was made as the defendants alleged, that the notes were executed as the defendants allege; that the purchase money was paid to the legal holder of the notes as the defendants alleged; that the defendants have been in quiet and undisturbed possession of the land since 1872 under the contract. On these findings the court below found that the defendants’ counterclaim to remove cloud on title was not barred by the statute of limitations, and that the plaintiffs were not the owners of the land.
The principle is well settled in this State and elsewhere that where both parties claim title under the same grantor, it is sufficient to prove a title derived from him without proving his title, as neither party can deny such title. The plaintiffs, in attempting to prove their own title, and in order to connect defendants’ title with a common source, introduced the James W. Draughan, executor, deed and the other conveyances set forth in the record, which contained certain recitals. ■ Plaintiffs contend that the evidence should be restricted.
We said in Cook v. Sink, 190 N. C., at p. 625: “They cannot ‘blow hot and cold in the same breath.’ Any other view would be inequitable and unconscionable. Plaintiff or the other devisees cannot take inconsistent positions. ‘Upon the principle similar to that applied to persons taking under wills, beneficiaries under a trust are estopped, by claiming under it, to attack any of its provisions. . . . So, also, one who accepts the terms of a deed or other contract must accept the same as a whole; one cannot accept part and reject the rest.’ Bigelow on Estoppel, 6 ed., p. 744; Fort v. Allen, 110 N. C., 191; Chard v. Warren, 122 N. C., 86; Freeman v. Ramsey, 189 N. C., 790”; Adams v. Wilson, 191 N. C., at p. 395.
The deed from James W. Draughan, executor, dated 13 November, 1872, to Richard BE. Jones, and his heirs and assigns, introduced by plaintiffs, have these recitals: “Witnesseth, that whereas the late Wells Draughan gave the said Richard H. Jones an obligation binding him, the said Wells Draughan, his heirs, executors and administrators to execute and deliver to said Richard H. Jones, his heirs and assigns a [524] good and fee-simple deed to tbe following described tract of land, upon the payment to him the said "Wells Draughan or his executor or administrator of three separate notes of five hundred dollars each, bearing interest from 1 January, 1870, and due respectively 1 January, 1871, 1 January, 1872, 1 January, 1873; and whereas the said R. H. Jones has paid off and satisfied said notes.”
The recitals in the other conveyances introduced by plaintiffs, speak of the land “being a part of the tract purchased by said Jones of Wells Draughan, deceased,” and “the tract of land on which R. H. Jones now resides, purchased by him of the late Wells Draughan, with the exception of the part sold to Thomas P. Braswell this day.”
Item 7 of the will of Wells Draughan says “Richard Jones now lives on said land.”
We will not discuss whether the recitals in the conveyance introduced by plaintiffs to connect defendants’ title with a common source was an estoppel as to them, as defendants made certain admissions of record and the action was tried out on the theory that the recitals were some competent evidence in ancient documents, and the competency of these recitals seems to be the crux of this action.
We think that the recitals in these deeds and the inventory return competent evidence under the ancient document rule. Davis v. Higgins, 91 N. C., 382; Sledge v. Elliott, 116 N. C., 712; Nicholson v. Lumber Co., 156 N. C., 59; Thompson v. Buchanan, 195 N. C., 155; Davis v. Gaines, 104 U. S., 386; Wilson v. Snow, 228 U. S., 217, 6 A. L. R., 1445 et seq.
In Buchanan’s case, supra, at p. 161, it is said: “The hearsay rule gives way to the ancient (document) doctrine rule and is admissible ordinarily at least as prima facie evidence of the truth of the contents.”
“Even if it be conceded that the deed was not of itself a valid conveyance, which the executor was authorized to make, the recitals were admissible to establish the truth of the facts recited. The deed was ancient; the parties to the transaction were dead; the recitals were against the interest of the party making them as he was one of the heirs of John S. Sydnor, and are consistent with every known fact connected with the title.” Sydnor v. Texas Savings Asso., 42 Tex. Civ. Ap., 138, 94 S. W., 451.
The executor’s deed in the present action was void because the bond for title was not recorded. Yet the evidence discloses that Richard H. Jones paid the purchase price. We think the principle laid down in Thompson v. Lumber Co., 168 N. C., at p. 229, analogous: “The deed to Prichard, which was objected to, is void, as contended by the defendant, because the grantee named was dead at the time of its execution (Neal v. Nelson, 117 N. C., 406), but upon proof of payment of the purchase [525] price bid at the sale an equitable estate would be Tested in the beirs of the purchaser, and it is well settled in this State that an action may be maintained on an equitable title (Condry v. Cheshire, 88 N. C., 375; Brown v. Hutchinson, 155 N. C., 207); and in our opinion there was circumstantial evidence of payment.” See Cedar Works v. Shepard, 181 N. C., 13. Defendants in this action are the successors in title from Richard H. Jones.
In the present action the alleged ancient original bond for title was lost. Under the evidence introduced by defendants, which we think competent, diligent search was made as required by law. “To show a writing is lost or destroyed, in general terms, without showing a reasonable search or inquiry for it, has never been regarded as sufficient to admit secondary or parol evidence of its contents. The best evidence is the paper-writing, when a matter is required to be put in writing, or the paper-writing is in issue or the subject of the controversy. McKesson v. Smart, 108 N. C., 17; Avery v. Stewart, 134 N. C., 287; Sermons v. Allen, 184 N. C., p. 127; Chair Co. v. Crawford, 193 N. C., 531. The exception to the rule is where the contents of the writing is collateral to the controversy or issue. Herring v. Ipock, 187 N. C., p. 459.” Harris v. Singletary, 193 N. C., at pp. 586-7.
Plaintiffs’ third contention is that defendants are barred by the statute of limitations, ten years, etc., and laches. We cannot so bold. Defendants contend that Richard H. Jones, through whom they claim, bad a written contract or bond for title, as required by law, from Wells Draughan; that upon the payment of certain notes a deed in fee simple was to be made him for the land in controversy. Under the bond for title in 1872, Jones went into possession of the land in controversy and the relationship of vendor and vendee existed, and the defendants claim title through him. When the notes were paid, be and those claiming under him became the equitable owners of the land and the devisees of Wells Draughan are mere naked trustees with no beneficial interest, and the claim of plaintiff is a cloud on defendants’ title. We think defendants’ contentions correct.
The principle is thus enunciated in Jennison v. Leonard, 21 Wall, 302 (22 Law Ed., 539) : “This is one of the sales of real estate by contract, so common in this country, in which the title remains in the vendor and the possession passes to the vendee. The legal title remains in the vendor, while an equitable interest vests in the vendee to the extent of the payments made by him. As bis payments increase, bis equitable interest increases, and when the contract price is fully paid, the entire title is equitably vested in him, and be may compel a conveyance of the legal title by the vendor, his heirs or assigns. The vendor is a trustee of the legal title of the vendee to the extent of his payment.” [526] “The equitable estate of the vendee is alienable, descendible, and devisable as real estate held by a legal title.” Lewis v. Hawkins, 23 Wall, 119, 23 Law Ed., p. 113.
In Cherry v. Power Co., 142 N. C., at p. 410, it is said: “As the purpose of the trust was fully accomplished, the necessity and reason for keeping the legal and equitable estates separate no- longer existed, and by operation of the statute of uses, aptly called ‘parliamentary magic/ the use becomes executed and the legal estate vested in the plaintiffs. McKenzie v. Sumner, 114 N. C., 425; Perkins v. Brinkley, 133 N. C., 154.”
Under our Constitution, the distinction between actions at law and suits in equity and the forms of all sucb actions and suits are abolished, but this did not destroy equitable rights and remedies nor merge legal and equitable rights. In one action the legal and equitable rights of the parties can be tried out. Waters v. Garris, 188 N. C., 305.
Under C. S., 1743, defendants pray that their title be quieted. In Plotkin v. Merchants Bank, etc., Co., 188 N. C., 711, 715, the Court said: “Walker, J., in Christman v. Hilliard, 167 N. C., 4, speaking of the statute, says: ‘The beneficial purpose of this statute is to free the land of the cloud resting upon it and make its title clear and indisputable, so that it may enter the channels of commerce and trade unfettered and without the handicap of suspicion.’ ” Johnson v. Fry, 195 N. C., 832.
From a careful inspection of the record, the numerous exceptions and assignments of error made by plaintiffs cannot be sustained. It appears to us that the action was unusually well tried by the learned judge who presided and the attorneys for the litigants.
No error.