#### BARDEN v. STICKNEY.

(Filed March. 4, 1902.)

1. APPEAL — Record—Notice—The Code, 8ec. 550.

That an appeal is not entered on record is immaterial where the • the fact of appeal is not denied and notice is served.

2. WARRANTY' — Covenants—Implied Warranty• — Foreclosure of Mortgages — Vendor and Pitrchaser.

Where a foreclosure sale passes no title to purchaser, the purchaser can nbt maintain an action against the mortgagee on an implied warranty of title.

ActioN by Maggie S. Barden against J. B. Stickney, heard by Judge Walter E. Neal, at October Term, 1901, of the Superior Court of WASHINGTON County. From a judgment for the plaintiff, the defendant appealed.

A. O. Gaylord, for the plaintiff.

H. G. Connor & Son, and H. S. Ward, for the defendant.

Clark, J.

This case was submitted to the Judge upon a case agreed, and by consent he was to render his judgment out of term, and the losing party should have ten days thereafter in which to appeal, and notice of appeal was waived. Upon receipt of notice of the judgment, and two days before the judgment ivas filed in .the Clerk’s office, the appellant gave written notice of appeal, service of Avhich was accepted *63by tbe appellee, as appears from tlie transcript of sucb notice and acceptance in tbe record. Tbe appellant filed a justified appeal bond, and bas in all other respects perfected bis appeal and sent up a complete transcript. Tbe appellee moves to dismiss tbe appeal because entry.thereof does not appear to have been entered on tbe record by tbe Clerk.

Tbe requirement that the appeal should be entered on tbe record is to furnish indisputable proof of the fact, and is immaterial when tbe fact of tbe appeal having been taken is not denied, and notice of appeal bas, in fact, been served in time, or waived. In Simmons v. Allison, 119 N. C., at page 563, it is said: “If tbe notice of appeal is admitted, or shown to have been given in time, it would avail nothing’ that tbe entry was not made at all, for it is only made as record proof. Fore v. Railroad, 101 N.C., 526; Atlcinson v. Railroad, 113 N. C., 581.” In tbe last-cited case,°it is said (at page 588): “Strictly and properly tbe record should show that the appeal was duly entered, but that is not imperative, if it appears, as here, affirmatively, that the appeal in fact was taken and notice waived. Fore v. Railroad, 101 N. C., 526.” The motion to dismiss tbe appeal must be denied.

It appears from the complaint that the defendant sold, after due advertisement, certain real estate on 30th January, 1888, by virtue of a mortgage executed to him by a married woman to secure her husband’s debt, that at said sale the property was bid off by one Ayers, who paid tbe purchase-money, it is alleged, with the money of plaintiff, and that subsequently said Ayers conveyed said realty to her. Subsequently it was ‘held that no title passed by said sale, because the surety bad been released by reason of an extension of time, which bad been granted by the mortgagee to the principal debtor. Fleming v. Barden, 126 N. C., 450, 78 Am. St. Rep., 671, 53 L. R. A., 316, and S. C., 127 N. C., 214. The defendant in that case having lost the realty, now brings *64tbis action against Stickney, tbe mortgagee, alleging that bis advertising tbe land, making sale, and receipt of tbe purchase-money, were an implied warranty of title. There is no allegation of fraud or fraudulent representation, and there is nothing in tbe facts agreed tending to show that Stickney did not act in entire good faith. Tbe very nature of tbe transaction forbids any recovery of money as having been paid to tbe plaintiff’s use and on tbe ground of implied warranty it is well settled that there is no implied warranty of title in tbe sale of real estate. Zimmerman v. Lynch, at this term, and cases cited. There was no covenant of warranty, either of quiet possession or of seizin, in tbe defendant’s deed to Ayers, and there being no allegation of fraud or concealment by him, tbe action can not be maintained. Huntley v. Woodall, 34 N. C., 32. Tbe defendant’s motion to dismiss tbe action because tbe complaint does not state a cause of action is allowed. Tbe other defenses set up by tbe defendant it is therefore unnecessary for us to consider.

Action Dismissed.