Tbis is an action by a father against bis son to set aside bis deed to bis son on tbe ground of fraud. Tbe jury found tbis issue against tbe plaintiff. Tbe plaintiff further alleged an estate for life in tbe property by virtue of tbe following agreement:
To Whom it May Concern: Tbis is to certify that I, Thomas J. Bullock, in consideration of tbe deed to our borne, tbe same being in my name, do hereby state that by mutual consent and agreement my father, Thomas H. Bullock, will act as guardian, and bis rulings shall be final. That said bouse shall always be a home for tbe comfort and enjoyment of my father, Thomas H. Bullock, and Mrs. Nannie A. Bullock, and for my brothers, Henry B., "Willie E., and for my sisters, Maggie J., tbe son of tbe deceased, Robert L. Owens, Mrs. Frances Thompson, and Sallie. Tbe guardianship of said property shall be banded down to tbe next oldest living sister or brother, with tbe same authority vested in him or her as is above set forth. It is to be expressly understood that said property is neither to be rented or mortgaged nor sold. Tbis testament is to remain at home, in tbe possession of tbe guardian, as a code whereby be or she may be directed as guardian from time to time, as tbe case may be.
Given under my band, tbis 15 October, 1909, at Henderson, North Carolina. Thomas J. Bullock,
Holder of the Deed.
*389The land in controversy was conveyed to the plaintiff August, 1902. On 5 October, 1909, he conveyed it to the defendant. On 15 October, 1909, the defendant delivered to the plaintiff the above instrument. The plaintiff testified that he had paid something on the land and that some of his other children had paid something thereon and the defendant the balance. The defendant testified that he had paid all the purchase money except a very small sum, and the deed had been made to his father in 1902 at his instance, and that the conveyance by his father to him in 1909 was in pursuance of the original understanding, and because of his payment of substantially all the purchase money.
On this second cause of action the court submitted this issue: “Has plaintiff any estate in the land described in the complaint under the paper-writing from defendant to the plaintiff, dated 15 October, 1909 ?” Under the direction of the court, the jury answered this “No; a license terminable at will, upon reasonable notice.” To that instruction exception was taken. The court entered judgment against the plaintiff.
The above instrument is very inartificially drawn. It was not a conveyance, because there are no words of conveyance and no seal. But from the recital therein, “m consideration of the deed to home” and “by mutual consent and agreement,” and the words at the end describing the defendant as “holder of the deed,” and upon the evidence, it might well be inferred that the intention of the parties was that the defendant should stand seized of the premises for the benefit of himself and the other parties named therein, during their lifetime. The intention must be gathered, not only from the face of the writing, which itself is not clear, but from the evidence in regard to the transaction. We think this should all have been submitted to the jury and that the judge should not have held as a matter of law that the agreement was a mere license, revocable at will of defendant.
The ease will therefore go back for a new trial upon this last issue. The costs of this Court will be divided.
Partial new trial.