¶1On a former appeal in this action a judgment as of nonsuit dismissing the action was reversed. It was held that there was sufficient evidence at the trial to support the allegations of the complaint which constitute plaintiffs’ cause of action for the cancellation of the deed from the plaintiffs to the defendant Saul West, and that from this evidence a presumption arose that the transaction which resulted in the execution of the deed was not fair and free from oppression. The burden to rebut this presumption was on the defendants. McLeod v. Bullard, 84 N. C., 515. The action was remanded to the Superior Court of Wake County for trial upon the issues raised by the pleadings. Hinton v. West, 207 N. C., 708, 178 S. E., 556.
¶2A subsequent trial was had, which resulted in a judgment for the plaintiffs. There was no exception to or appeal from this judgment. This appeal is from the judgment that the defendant Saul West recover of the plaintiffs for improvements made by him on the land after the execution of the deed and prior to the commencement of the action. The only exception is to the judgment. There was no exception to the findings of fact made by the court, on which the judgment was rendered.
¶3The judgment is supported by Wilson v. Fisher, 148 N. C., 536, 62 S. E., 622. In that case it is said: “While it is the general rule that a mortgagee in possession is not entitled to pay for improvements, we are of opinion that as plaintiffs in this action are asking equitable relief, after so many years, they should account in diminution of rents for such enhancement in value of the property as may be found by reason of permanent improvements put therein by the defendant. There should be a reference to state an account between the parties upon the principle indicated in this opinion.”
¶4Hall v. Lewis, 118 N. C., 509, 24 S. E., 209; Southerland v. Merritt, 120 N. C., 318, 26 S. E., 814; and Hallyburton v. Slagle, 132 N. C., 957, 44 S. E., 659, are distinguishable from the instant case. In this case the jury has found that the execution of the deed which has been canceled by the court was not procured by the actual fraud of the defendants. The deed was canceled because the defendants failed to rebut the presumption which arose solely because of the relationship of the parties that the transaction which resulted in the execution of the deed was not fair and free from oppression.
¶5On the facts found by the court, the judgment is in accord with the principle that he who seeks equity must do equity. The judgment is
¶6Affirmed.