#### MAHALA BRIGGS AND OTHERS *against*FREDERICK MORRIS.

To convert a purchaser who takes a deed absolute on its face into a trustee for another, it must he alleged; and proved that the clause of redemption or the declaration of the trust was omitted either through ignorance, mistake, fraud or undue advantage,%nd this must be established, not merely by proofs of declarations, but of facts and circumstances, *dehors the deed,*inconsistent with the idea of an absolute purchase.

Cause removed from the Court of Equity of Forsyth County at Spring term 1854.

Elizabeth Briggs the sister of the plaintiffs executed her bonds with Benjamin Briggs and Henry M. Briggs as her sureties for the purchase money of the tract of land in controversy to the then owner Samuel E. Britz and took from him a bond to make title to the same whenever Elizabeth should pay the purchase money. Britz died shortly afterwards and the land survived to his wife who also . died in a short time and C. D. Keeln qualified as her executor. The bill alleges that Elizabeth Briggs being unable to pay the purchase money, it was agreed between her and Keeln the Executor, that the land should be put up at auction and sold in order to pay the bond: that as the plaintiff’s lived on the land they applied to the defendant Morris, who had money to lend, to purchase the land for them, and he agreed to do so and reconvey to them whenever they should pay the purchase money. It was further agreed, as they allege, that they should retain the possession and give him one third of the crop for the interest of the money.

Accordingly the defendant purchased the land at the sale tor $201 and took an absolute deed for the same from the Executor which was greatly less than the value of the land it being, as they allege, about $450. That while the auction was *194going on, the defendant made known to the by-standers that he was buying the land for the plaintiffs and thus prevented others who were present, and who were willing to buy in the land for the plaintiffs, from bidding for the same and by these means he was enabled to get the land at an undervalue. The bill further alleges that, having procured the money they tendered the same to the defendant, who denied the contract and refused to convey to the plaintiffs. The prayer of the bill is for a tonveyance of the land and for general relief.

The defendant’s answer denies the plaintiff’s whole equity.

There was replication to the answer: commission and proofs and the cause being set for hearing was sent to this court by consent of parties.

*Miller*for plaintiff.

*Morehead*for defendant.

Battle, J.

The bill seeks to convert the defendant, who claims the land in controversy as his own under an absolute deed to himself, into a trustee for the plaintiffs, upon the allegations that he purchased it for them under a promise to let them have it when they should repay him the purchase money; and that by representing to bidders at the sale that he was so purchasing, he got the land at an under value, and then refused to perform his contract. Several objections have been urged against the right of the plaintiffs to recover — of which it is necessary for us to notice one only, which is decisive against them. We have heretofore said in several cases, all of which are referred to in Clement vs. Clement decided at this Term, (ante, 184,) that to correct a deed absolute on its face and to hold it as only a security for a debt, or to convert a purchaser who takes an absolute deed to himself into a trustee for another, it must be alleged and proved that the clause of redemption or the declaration of trust, was omitted by, reason of ignorance, mistake, fraud or undue advantage ; and the intention must *195be established, not merely by proof of declarations, but by proof of facts and circumstances *dehors the deed*inconsistent with the idea of an absolute purchase. Here the only circumstances relied upon of the latter character, are the inadequacy of price and the possession of the land by the plaintiffs. As to the inadequacy of price there is some discrepancy in the testimony ; but if there were not, and it were fully established it would not be of itself sufficient. The argument derived from the other circumstance the possession of the land by the plaintiffs, is deprived of all its force by the admitted fact that the plaintiffs paid one third of the produce as rent. It is true they say it was paid in lieu of interest on the purchase money: but unfortunately for them, it leaves their case dependent for support solely upon the declarations of the defendant. This case very much resembles; in its prominent features that of Brown v. Carson Busb. Eq. Rep. 212 and must be disposed of in the same way the bill must be dismissed with costs.

Decree accordingly.