#### MERCHANTS & FARMERS BANK OF LANDIS, NORTH CAROLINA, a Corporation, and O. R. BLACK, Trustee, v. MAE OLA HEINTZ SHERRILL and J. C. SHERRILL.

(Filed 19 April, 1950.)

1. Mortgages § 5: Deeds § 5—

The introduction, in evidence by plaintiff of recorded deed of trust with recitals showing purported signatures of the trustors duly acknowledged, probated and recorded, raises the presumption of due execution, signing and delivery, and the testimony of the -feme trustor that she did not sign the instrument, even though not contradicted by oral testimony, does not warrant a peremptory instruction in her favor, the matter being for the determination of the jury upon the evidence under appropriate instructions from the court.

2. Estoppel § 7—

The power of a married woman to effect a conveyance of her real property by estoppel in pais is delimited by Art. X, sec. 6, of the Constitution of North Carolina.

Appeal by plaintiffs from Bennett, Special Judge, December Term, 1949, of Cabahetts. New trial.

L. E. Barnhardt and Hugh Q. Alexander for plaintiffs, appellants.

John C. Kesler for defendant, appellee.

Devin, J.

Plaintiff Bank instituted action to foreclose a deed of trust purported to bave been executed by defendants to secure a note of $4,000, which it is alleged is overdue and unpaid. The feme defendant answered that the real property described in the complaint was her own and that she had not signed the note or deed of trust, alleging forgery. Plaintiff replied that if the papers were forged the feme defendant with knowledge of the forgery had failed for two years to so advise plaintiff and had accepted the benefit of the cancellation of a prior deed of trust of $3,000 from the proceeds of the $4,000 loan, and that she was now estopped to deny validity of the deed of trust sued on. Defendant rejoined that the prior deed of trust referred to was also a forgery.

Plaintiff offered in evidence the record of the deed of trust, reciting the indebtedness of defendants and the execution of the note, and showing the purported signature, acknowledgment and private examination of feme defendant. Plaintiffs also offered oral testimony that the note and deed of trust, the property of the plaintiff Bank, were due and unpaid. The feme defendant testified she did not sign the instruments sued on, or the prior deed of trust referred to in the reply, and that as soon as she discovered the Bank held the papers she sought without success to *732induce her husband to pay the balance due; that she was not now living with her husband, and had received no benefit from either of the notes or deeds of trust referred to.

Issues were submitted as to the execution by the feme defendant of the two deeds of trust referred to in the pleadings, and the jury was instructed to answer these issues no, if they found the facts to be as all the evidence tended to show. Verdict was returned accordingly and the plaintiffs excepted and appealed.

"We think there was error in giving to the jury the instructions complained of. The introduction by the plaintiff of the recorded copy of the deed of trust sued on (G.S. 8-18), with its recitals, showing the purported signatures of the defendants duly acknowledged, probated and recorded, together with proof that the debt secured was due and unpaid, made out a prima facie case for the plaintiffs. The record raised the presumption of due execution, signing and delivery of the deed of trust. Belk v. Belk, 175 N.C. 69 (72), 94 S.E. 726; Best v. Utley, 189 N.C. 356 (364), 127 S.E. 337; Johnson v. Johnson, 229 N.C. 541 (545), 50 S.E. 2d 569.

The burden was on the feme defendant to rebut this presumption, Johnson v. Johnson, supra. She testified she did not sign the written instruments referred to, and that her purported signatures thereon were forged. True, this evidence was not contradicted by oral testimony, but it left the matter open for the jury to determine the credibility and weight of the evidence under appropriate instructions from the court. G.S. 1-180; Perry v. Trust Co., 226 N.C. 667, 40 S.E. 2d 516; Morris v. Tate, 230 N.C. 29, 51 S.E. 2d 892.

In view of the holding of this Court in Buford v. Mochy, 224 N.C. 235, 29 S.E. 2d 729, it would seem that the power of a married woman to effect a conveyance of her real property by estoppel in pais is delimited by Article X, sec. 6, of the Constitution of North Carolina.

New trial.