dissenting: It is in evidence tbat tbe plaintiff conveyed bis interest and equity in $50,000 worth of property to bis brother and *133tbe defendant on the terms set out in the letter of 12 June, 1932. Conceding that no fraud in the treaty has been shown and that the prayer of the complaint may be too broad, still it does not follow that the defendant is entitled to go without day and recover her costs.
The only consideration moving to the plaintiff was that mentioned in the letter of 12 June, 1932, to wit: .“For this you shall have % the net proceeds of the farm, mill, etc., each year. If the lumber can be sold you can come supt. sell, etc., having % the profits. . . . Further you may purchase the entire place mill & all any time you can &• wish with a reasonable profit.”
Was the “old place,” therefore, to be held for the joint benefit of both parties, with the right of the plaintiff at any time he could and wished to purchase the entire place, or his brother’s interest therein, at a reasonable profit? Lutz v. Hoyle, 167 N. C., 632, 83 S. E., 749; Sykes v. Boone, 132 N. C., 199, 43 S. E., 645. The plaintiff so understood it, and upon this confidence the conveyance was made. No other consideration passed. Brogden v. Gibson, 165 N. C., 16, 80 S. E., 966; Avery v. Stewart, 136 N. C., 426, 48 S. E., 775. Such, also, was the understanding of plaintiff’s brother. In a letter dated 2 May, 1942, he expressed regret that he had overlooked plaintiff was “to have a hand in the sale of the lumber, trees, etc.”; apologized for inadvertently proceeding in disregard of his rights, and said: “You may come up right now, if you wish, and take charge of the works.” Cunningham v. Long, 186 N. C., 526, 120 S. E., 81.
In any event, as against a nonsuit, would not the plaintiff be entitled to an accounting for one-half the annual net proceeds from the grantee in possession? Sandlin v. Yancey, 224 N. C., 519. Equity shapes its decrees to fit the facts. McNinch v. Trust Co., 183 N. C., 33, 110 S. E., 663. Because the plaintiff has asked for a whole loaf is no reason why he should be denied half a loaf, or even a few crumbs. Neither the form of the action nor the prayer of the complaint is a bar to a lesser recovery. McIntosh on Procedure, 423. However, the plaintiff is not reduced to this extremity.
Nor is plaintiff’s grantorship in the deed fatal to the case. Justice v. Sherard, 197 N. C., 237, 148 S. E., 241. The terms are in writing, and they furnish the consideration for the transaction. Anderson v. Harrington, 163 N. C., 140, 79 S. E., 426; Shelton v. Shelton, 58 N. C., 292. The deed itself affords some evidence of the trust. In the warranty is the expression: “that the same is free and clear from all encumbrances except as is made a part of the consideration herein.” The cases of Jones v. Jones, 164 N. C., 320, 80 S. E., 430, and Gaylord v. Gaylord, 150 N. C., 222, 63 S. E., 1028, are inapposite. See Allen v. Gooding, 173 N. C., 93, 91 S. E., 694.
*134Tbe plaintiff’s brother never repudiated tbe terms of tbe conveyance during bis lifetime. He remitted plaintiff’s one-balf “division” of tbe timber sales from time to time, tbe last remittance being on 2 October, 1942, only a few days before bis death. Indeed, bad be lived, tbe matter would have been settled without “any outsider coming into tbe controversy” according to one of bis last letters.
Can tbe defendant, who takes as grantee in tbe same deed, successfully claim sole seizin as survivor and repudiate tbe conditions on which tbe deed was acquired? Oil Co. v. Baars, 224 N. C., 612; Ballard v. Boyette, 171 N. C., 24, 86 S. E., 175; Burns v. McGregor, 90 N. C., 222; Blount v. Carroway, 67 N. C., 396. It is of no consequence that she did not sign tbe letter of 12 June, 1932. Holden v. Strickland, 116 N. C., 185, 21 S. E., 684. Where a conveyance is made on consideration of a confidence, equity will enforce tbe confidence against tbe grantee in tbe conveyance or against one in privity with tbe grantee. McFarland v. Harrington, 178 N. C., 189, 100 S. E., 257; Cobb v. Edwards, 117 N. C., 244, 23 S. E., 241; Owens v. Williams, 130 N. C., 165, 41 S. E., 93; Lamb v. Pigford, 54 N. C., 196; Brogden v. Gibson, supra, and cases there cited.
Tbe action readily survives tbe plea of tbe statute of limitations. Tbe defendant repudiated tbe terms of tbe agreement in 1943 — so admitted in tbe answer — which gave rise to this suit for declaration and impression of trust and for an accounting. Not until such repudiation was tbe aid of equity invoked or needed. Peele v. LeRoy, 222 N. C., 123, 22 S. E. (2d), 244. Moreover, tbe defendant pleads tbe 10-year, tbe 7-year and tbe 3-year statute of limitations, which within itself is a repudiation of tbe agreement.
My vote is for a reversal of tbe judgment of nonsuit.
WiNBORNE and DeNNY, JJ., concur in dissent.