#### WILLIAM G. LIVERMAN, JR., VIOLA MYERS, ELIA CHAMBLEE, and BELLE M. ANDREWS, v. J. N. VANN and His Wife, AGNES VANN, W. T. FORBES and His Wife, ADA FORBES, and W. T. WHEDBEE and His Wife, LUCILLE J. WHEDBEE.

(Filed 13 October, 1937.)

Appeal and Error § 47a. — Motion in Supreme Court for new trial for newly discovered evidence allowed in this case.

Plaintiffs’ evidence tended to show that upon the maturity of a note secured by mortgage, the maker agreed to convey the land to defendants, reserving a life estate, if defendants would satisfy the note, that defendants paid a sum in cash to the payee, who transferred the note to them, and that thereafter the maker executed deed to them under the agreement. The maker of the note died, and plaintiffs, devisees in a will executed by the maker of the note prior to the execution of the deed, instituted this action to set aside the deed for mental incapacity and for fraud and duress. Upon plaintiffs’ appeal from an adverse verdict, no error was made to appear, but plaintiffs move for a new trial for newly discovered evidence and filed affidavits showing that since the trial a letter from one of defendants had been discovered indicating that the parties understood and agreed that the relationship of mortgagor and mortgagee should continue notwithstanding the deed. Held: Although the letter probably is incompetent on the theory of trial, a new trial is awarded, since plaintiff may make a motion to amend, addressed to the discretion of the court, so as to set up a new cause of action giving them the right to redeem the land from the deed of trust by paying the note.

Appeal by plaintiffs from Grady, J., at April Term, 1937, of Hert-eord. New trial.

This is an action to have a deed, executed by Mrs.-Viola G. Jenkins on 15 August, 1932, and conveying to the male defendants in fee, subject to a life estate reserved in the deed to the grantor, the tract of land described therein, adjudged void, on the ground (1) that at the date of the execution of said deed the grantor, Mrs. Viola G. Jenkins, was of such weak mind and memory that she was incapable of entering into a valid and binding contract; and (2) that the execution of said deed was procured by fraud and duress on the part of the grantees, as alleged in the complaint. . °

The evidence for the plaintiffs tended to show that on and prior to 27 July, 1931, Mrs. Viola G. Jenkins was seized in fee and in possession of a tract of land situate in St. John’s Township, Hertford County, North Carolina, containing 144.7 acres, more or less; that on 27 July, 1931, for the purpose of securing the payment of her note for $1,000, as recited therein, the said Mrs. Viola G. Jenkins conveyed the said tract of land, by a deed of trust, to R. C. Cole, trustee; that the note secured by said deed of trust became due and payable according to its terms on *17827 July, 1932, and that soon thereafter the holder of said note demanded its payment by the said Mrs. Yiola Gr. Jenkins, as maker thereof; that the said Mrs. Viola Gr. Jenkins admitted her liability on said note, but was unable to pay the amount due thereon; and that after repeated efforts, which were unsuccessful, to borrow money with which to pay said amount, the said Mrs. Viola Gr. Jenkins went to the place of business of the defendants in the town of Ahoskie, N. C., and there proposed to the defendant J. N. Vann that if he would pay the amount due on said note she would convey to him and his codefendants in fee the tract of land described in the deed of trust, reserving to herself a life estate in said tract of land; that the defendants, after some negotiations with the holder of the note, accepted the proposition of Mrs. Viola G. Jenkins and accordingly, on 11 August, 1932, paid the sum of $475.00, in cash, to the holder of the note, who thereupon transferred and assigned the note to the male defendants.

The evidence for the plaintiffs tended to show further that pursuant to her contract and agreement with the defendants, on 15 August, 1932, at her home in Hertford County, the said Mrs. Viola G. Jenkins executed a deed by which she conveyed the tract of land described in the deed of trust to the male defendants in fee, reserving to herself an estate for her life in said tract of land; that said deed was prepared by the defendant J. N. Vann, and was duly probated, and recorded in the office of the register of deeds of Hertford County, in Book 103, at page 460; that after the execution and registration of said deed, to wit, some'time during the month of December, 1932, with the consent of the defendants, the skid Mrs. Viola G. Jenkins sold the timber on said tract of land for the sum of $403.50; and that said sum of $403.50 was paid by the purchaser of said timber to the defendants, who entered said sum on their books as a credit on their account with the said Mrs. Viola G. Jenkins.

The evidence for the plaintiffs tended to show further that at the date of the execution of said deeds, Mrs. Viola G. Jenkins was about 75 years of age; that she had suffered from pellagra for about 17 years, during which time she was almost constantly under treatment by her physician; that in consequence of said disease, she was weak in mind and in body and at times not in her right mind; and that she was easily depressed, especially by business worries.

The evidence for the plaintiffs tended to show further that at the date of the execution of said deed the tract of land which was conveyed thereby to the male defendants was worth from $4,000 to $6,000, and at the date of the trial was worth $7,000.

Mrs. Viola G. Jenkins died during 1934, having first made and published her last will and testament, by which she devised the tract of land *179described in ber deed to .tbe defendants, to tbe plaintiffs, who are her nepbew and nieces. Tbe said last will and testament was executed by ber prior to tbe date of tbe said deed, and bas been duly probated and recorded.

At tbe close of tbe evidence for tbe plaintiffs, tbe defendants moved tbe court for judgment as of nonsuit on plaintiffs’ cause of action founded upon tbe allegations of tbe complaint tbat tbe execution of tbe deed from Mrs. Yiola G. Jenkins to tbe male defendants was procured by fraud and duress on tbe part of tbe grantees tberein. Tbis motion was allowed by tbe court, and plaintiffs excepted.

Evidence was tben offered by tbe defendants tending to contradict tbe evidence for tbe plaintiffs with respect to tbe mental incapacity of Mrs. Viola G. Jenkins at tbe date of tbe execution of tbe deed from ber to tbe male defendants, and further tending to sbow tbat tbe said Mrs. Viola G. Jenkins at said date bad sufficient mental capacity to enter into a valid and binding contract and to execute said deed.

Tbe issues submitted to tbe jury were answered as follows:

“1. At tbe time of tbe alleged contract between J. N. Vann and Mrs. Viola G. Jenkins for tbe purchase of tbe note and mortgage deed from R. C. Cole, and tbe execution of tbe deed from tbe said Viola G. Jenkins to J. N. Vann and others, defendants in tbis action, was tbe said Mrs. Viola G. Jenkins of such weak mind and memory tbat she could' not enter into a valid and binding contract, as alleged in tbe complaint? Answer: ‘No.’

“2. What amount of money was expended by J. N. Vann and others, defendants in tbis action, in tbe purchase of said note and mortgage from R. C. Cole? Answer: ‘$475.00.’

“3. What amount of money was received by J. N. Vann and others, defendants in tbis action, from tbe sale of timber from tbe Jenkins tract of land? Answer: ‘$403.50.’

“4. "What part of said money, if any; belongs to tbe estate of Mrs. Viola G. Jenkins, deceased? Answer: ‘$120.55,’by consent.”

From judgment in accordance with tbe verdict, and directing tbat tbe defendants pay into tbe office of the clerk of tbe court tbe sum of $120.55, to be held by said clerk for tbe administrator or executor of Mrs. Viola G. Jenkins, deceased, tbe plaintiffs appealed to tbe Supreme Court, assigning errors in tbe trial.

D. C. Barnes, E. B. Tyler, and W. D. Boone for plaintiffs.

E. L. Travis and J. Carlton Cherry for defendants.

CoNnoe, J.

An examination of tbe record in tbis appeal does not disclose any error for which tbe plaintiffs are entitled to a new trial. *180None of tbeir assignments of error can be sustained. On the record, the defendants are entitled to have the judgment of the Superior Court in this action affirmed.

The plaintiffs contend, however, that if they are not entitled to a new trial for errors in the trial in the Superior Court, they are entitled to a new trial for newly discovered evidence in accordance with their motion which was duly made in this Court. See McIntosh, N. C. Prac. and Proc., page 806; Johnson v. R. R., 163 N. C., 431, 79 S. E., 690; Stilley v. Planing Mills, 161 N. C., 517, 77 S. E., 760; Chrisco v. Yow, 153 N. C., 434, 69 S. E., 422; Smith v. Moore, 150 N. C., 158, 63 S. E., 735; Black v. Black, 111 N. C., 300, 16 S. E., 412.

It appears from affidavits filed in this Court by the plaintiffs, and not controverted by the defendants, that after the expiration of the term of the Superior Court of Hertford County at which the action was tried, the plaintiffs discovered a letter which the defendant J. N. Vann wrote to Mrs. Viola Gf. Jenkins, who had died before the trial, which is as follows:

> “Ahostcie, N. C., Dec. 17th, 1932.

> “MRS. Viola JeNkins,

> Aulander, N. C.

> “Dear CousiN Viola: Replying to your letter of the 15th, which I received yesterday, I told Cola Sumner several days ago, that we had no objection to the sale of your timber, provided the sale was made to some responsible party, or- the money was paid for the timber before it was cut, and the proceeds applied on the note.

> “I do not know when it will be possible to get to see you, as I have my hands full trying to shape my personal affairs before leaving the first of the year.

> “With kind, good wishes, I am

> Sincerely yours,

> Joe.”

This letter, while probably not competent, relevant, or material as evidence pertinent to any of the issues submitted to the jury at the trial, would be competent, relevant, and material as evidence pertinent to an issue involving the relationship of Mrs. Viola G-. Jenkins and the defendants with respect to the tract, of land conveyed by her to them by deed dated 15 August, 1932. It tends to show that it was understood and agreed by and between Mrs. Viola G. Jenkins and the defendants, at the time his deed to them was executed, that the relationship between them of mortgagor and mortgagee should continue, notwithstanding said deed, and that Mrs. Viola G. Jenkins should have the right to redeem the land from the deed of trust, by paying to the defendants the amount *181due on bis note. Before tbe new trial tbe plaintiffs may and probably will move for leave to amend tbeir complaint and set up therein a new cause of action. Sucb motion will, of course, bo addressed to tbe discretion of tbe court.

Tbe motion for a new trial for newly discovered evidence is allowed. It is so ordered.

New trial.