majority"> Furches, J.:

The evidence in this case creates a strong impression upon the minds of the Court of palpable fraud on the part of defendant, from which a .Court of Equity *515 should give relief. After the verdict of the jury, the defendant moved for judgment non obsta'nte veredicto, for the reason that the complaint did not state a cause of action in that it did not allege that the condition and clause of defeasance in his deed were “ omitted by fraud, inadvertence or mistake,” and cites Norris v. McLam, 101 N. C., 159, for this position. We do not admit that fraud is not alleged in the complaint-; and therefore it does not become our duty to consider whether Norris v. McLam, supra, was put on the first principles of equity or not. It is true that the general rule is that there should be allegata as well as probata. But this is a rule of practice and the question is, "Whether this rule of practice would not give way to that great principle of equity that will enforce the specific performance of contracts where the contract is not denied. A parol contract for the sale of land will be enforced if it is not denied. Bonham v. Craig, 80 N. C., 226. If it is denied it cannot be proved under the statute of frauds, and, of course, cannot be enforced. But this is because the contract is denied and cannot be proved.

Then, to take this complaint as upon demurrer, why should it .not be enforced ? A demurrer admits the facts, and defendant’s motion must be put on the same ground. But, if we take it in connection with the evidence of the plaintiff that the defendant agreed to take up the mortgage of the Clinton Loan Association, on which there was only $80.42 due, and to hold it until he could pay him ; that defendant said to plaintiff that he would not take a mortgage from plaintiff to secure him, but would take a deed which would be the same thing in effect, and it would be cheaper for both; that defendant procured the deed to be written and had the consideration stated to be $125, without the knowledge of defendant, as he alleges; that it was not read over to him, and he could not read; that *516 plaintiff’s wife went the next day and signed it without its ever being read to her, and she cannot read, and the justice who took her acknowledgment testified that he did not read it to her, and that after she had signed and acknowledged the same she asked how much was still due on the land, and he told her that her husband had told him “ about $80,” and that .plaintiff continued to live on the land and make a crop.

And ■ now we are asked to say that all this does not amount'to an allegation of fraud !

There are some expressions used by the court on the trial that might be subject to criticism but for the admitted facts on the part of defendant. For instance, when the defendant offered evidence for the purpose of showing that he had put valuable improvements on the land, aiid the court in ruling out this evidence remarked “ that a mortgagee was not entitled to anything for improvements he put on theland,” and when he said that he should charge the jury “ that if they believed the testimony of the defendant, construed and taken in connection with that offered by the plaintiff, then they should • find the said deed, though absolute on its face, was intended as a mortgage.” There was no error in the court’s excluding the evidence offered to show improvements. The error, if any, was in the judge’s expressing an opinion as to a fact upon which the jury had to pass, and in the court’s grouping together the evidence of the plaintiff, “ taken in connection with that of the defendant,” when defendant contends that the defendant’s evidence was contradictory of that of the plaintiff, and the jury should have been so instructed.

But when we consider that the defendant admitted that he, at the request of plaintiff, paid the Clinton Loan Association $80.42, and had the mortgage and debt assigned to him, the law at once created the fiduciary relation of mort *517 gagor an’d mortgagee between the plaintiif and the defendant. And this being so, the deed from plaintiif could only be a purchase of plaintiff’s reversionary interest in the land, which the law presumed to be fraudulent, and the burden was upon the mortgagee (the defendant) to show the bona fides of the transaction. McLeod v. Bullard, 84 N. C., 515. And it was not only the right but the duty of the court to have instructed the jury to that effect. And we find nothing in what the judge said that goes to the extent of the rule laid down by the Court in McLeod v. Bullard, supra. So, if there was error in wh-it the judge said as pointed out by defendant, it was harmless, as it was the duty of the judge to tell the jury that the law presumed the transaction to be fraudulent on the part of defendant, and it devolved on him to rebut this presumption by proving the bona fides of the transaction — that is, that he had dealt fairly and openly with plaintiff — that he had explained why it was that he caused $125 to he stated as the consideration when he only paid $80.42 — that it was a bona fide purchase for $1“5 — why it was that he charged the plaintiff $1.50 for his time and trouble in going with plaintiff to take up the old mortgage — that he had given a reasonably fair price for the land, (shown to be worth $300 by uncon-tradicted evidence,) and that he had paid the plaintiff at least the difference between $80.42 and $125.

And as defendant had offered no evidence as to the $1.50 paid him for his time, and no evidence to show or tending to show that the land, for which he paid only $80.42, is not worth $300, it was the duty of the court to charge the jury that defendant had not rebutted the presumption of fraud the law put upon him, and it was their duty to return a verdict for plaintiff — even to say nothing of the other evidences of fraud in the case, upon which defend *518 ant’s evidence hardly amounted to a scintillai, a shadow, a pretense.

In our opinion this is not a case in wlr.ch defendant is entitled to pay for improvements. He was bound in law to know his title was not good, and there was no error in refusing to hear evidence as to improvements. The judgment must be affirmed.

Affirmed.

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