Tyner v. Barnes.

54 S.E. 1008, 142 N.C. 110, 1906 N.C. LEXIS 224

• Court: Supreme Court of North Carolina
• Decided: September 25, 1906
• Status: Published

Opinion

IIoke; J.,

after stating the case: The only objection to the validity of this trial, urged upon our attention by the appellant, was to a certain portion of the plaintiff’s testimony in which he gave a conversation between the plaintiff and Joseph Barnes, as follows: “Barnes told me that Bicks had said to him that lie (Bicks) had found out the plaintiff’s mortgage was not recorded, and that if Barnes would give him a mortgage he (Bicks) would cut the plaintiff out of his money.” The objection being that this was a declaration of Barnes, not, in the presence of Bicks and after Barnes had executed the deed of trust securing the alleged indebtedness to Bicks.

The objection is not well taken. The evidence was certainly competent against Barnes, the declarant; and, besides, no objection or exception to the testimony appears anywhere in the record or case on appeal. It was not objected to when offered; there is no motion to strike it out, and no request that the same be confined in its effect to the 'issue as to fraud on the part of Barnes. The objection, therefore, is not open to the defendant. Bridgers v. Bridgers, 69 N. C., 454; State v. Ballard, 79 N. C., 627; McKinnon v. Morrison, 104 N. C., 363.

We find in the record another exception to the refusal of the Judge to dismiss the cause as on motion of nonsuit on the ground that there is no evidence to show fraud sufficient for the consideration of the jury, and this objection cannot be sustained. Without going into a detailed statement of the testimony, we are of opinion that there is evidence tending to show that this deed of trust was not for the real purpose of securing a bona fide debt, but that the whole”transaction was a colorable arrangement to secure a feigned or pretended debt with the design and purpose to deprive the plaintiff of his security.

Apart from this, tbe jury in. response to the third issue have found that Ricks advanced no money to Barnes as a consideration for the note and deed of trust. The issue is not framed with the scope or precision that is desirable, but, taken in connection with the pleadings and the testimony, the verdict on the third issue was evidently intended to mean, and by fair intendment could only mean, that Ricks was not a purchaser for value, but a volunteer. If this is true, it is not required to defeat his claim that there should have been any actual fraud on his part, and any error on that question would be harmless. Our registration act, Revisal, sec. 980, for lack of timely registration only postpones or subordinates a deed older in date to creditors and purchasers for value. As against volunteers or donees, .the older deed, though not registered, will, as a rule, prevail. There is no error, and the judgment below is

Affirmed.