The opinion
Stacy, C. J.
Defendants were not permitted to show, as consideration for the deed in question, services rendered prior to 1 January, 1925, upon the theory, we presume, that recovery for such services was thought to be limited to three years next immediately preceding the commencement of the action, or the death of Nellie Horne McCullers.
Wood v. Wood,
186 N. C., 559 , 120 S. E., 194 ;
Edwards v. Matthews,
196 N. C., 39 , 144 S. E., 300 ;
Miller v. Lash,
85 N. C., 51 . In this we think there is error. The action is not to recover for such services and there is no plea of the statute of limitations.
True, services rendered gratuitously by a daughter to her mother may not support a conveyance as against creditors, or be used as the basis of an action against the latter or her estate.
Nesbitt v. Donoho,
198 N. C., 147 , 150 S. E., 875 ;
Staley v. Lowe,
197 N. C., 243 , 148 S. E., 240 ;
Stallings v. Ellis,
136 N. C., 69 , 48 S. E., 548 . But the presumption of gratuity, which arises out of certain family relationships, may be overcome or rebutted by proof of an agreement to pay, or of facts and circumstances permitting the inference that payment was intended on
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tbe one band and expected on tbe other.
Nesbitt v. Donoho, supra; Dunn v. Currie,
141 N. C., 123 , 53 S. E., 533 ;
Brown v. Williams,
196 N. C., 247 , 145 S. E., 233 ;
Henderson v. McLain,
146 N. C., 329 , 59 S. E., 873 ;
Winkler v. Killian,
141 N. C., 575 , 54 S. E., 540 . Tbe defendants are entitled to show, if they can, tbe real consideration for tbe deed in question.
Pate v. Gaitley,
183 N. C., 262 , 111 S. E., 339 ;
Faust v. Faust,
144 N. C., 383 , 57 S. E., 22 ;
Barbee v. Barbee,
108 N. C., 581 , 13 S. E., 215 . Tbe plaintiff, on tbe other band, is entitled to assail tbe instrument, if it can successfully do so, as a voluntary conveyance under tbe principles announced in
Bank v. Lewis, ante,
148, and cases there cited.
Nor would it seem, under tbe tests enumerated in
Bank v. McCullers, post,
440, that tbe judgment by confession is necessarily void as a matter of law. Tbe confession and entry on their face appear to conform to tbe requirements of tbe statute; at least they are not perforce abortive. Uz
zle v. Vinson,
111 N. C., 138 , 16 S. E., 6 ; 34 C. J., 97,
et seq.
New trial.