#### HODGE v. HUDSON.

(Filed October 17, 1905).

Deeds — Fraud—Evidence.

1. In an action by plaintiff, who was an illiterate man, to set aside a deed because it was obtained by fraud and without consideration, .evidence that the defendant, an educated man and a physician, went to the plaintiff’s premises, and representing that he had bought in an old mortgage debt, which plaintiff claimed had been paid, procured from the plaintiff, without any payment to him, the execution of a deed which was written by the defendant and was different from what was represented, and the existence of the mortgage debt was not shown, held, the ease was properly submitted to the jury.

2. In an action to set aside a deed for fraud, where the plaintiff had testified that the purport of the deed which was written by the defendant, was different from what was represented, and the plaintiff could not read, it was competent to ask him, “Who told' you that the deed conveyed all your interest in the land,” not to prove the declaration of the third party, but to corroborate the plaintiff that as soon as he learned that fact, he put up notices repudiating the deed.

3. In an action to set aside a deed for fraud and for want of consideration, endorsements upon a mortgage, which the defendant claimed to have bought in, were properly excluded, the mortgage note not being produced.

4. Where the mortgage debt had not been shown or proven, it was not competent to prove a declaration made by B, that she owned the debt, nor was the evidence as to the purchase of the mortgage by the defendant from R, who was not shown to have the legal title, competent.

AotioN by Isliam Hodge against W. L. Hudson, beard by Judge G. 8. Ferguson and a jury, at tbe May Term, 1905, of tbe Superior Court of Cumberland County. From a judgment for tbe plaintiff, tbe defendant appealed.

*359 N. A. Sinclair for tbe plaintiff.

H. L. Cook; Pou & Puller; T. H. Sutton and TY. A. Stewart for tbe defendant.

ClaeK, C. J.

This is an action to set aside a deed because it was obtained by fraudulent representations, and without consideration. Tbe plaintiff was an illiterate colored man, wbo bad been in possession of tbe land for twenty-one years under a deed tberefor. The defendant, an educated man and a physician, went to tbe plaintiff’s premises, and representing that be bad bought in an old mortgage debt of plaintiff (which tbe latter claimed bad been paid), procured from tbe plaintiff, without any payment to him, tbe deed now sought to be set aside. Both parties gave in their version of tbe transaction, and tbe jury found for plaintiff. There was evidence to permit tbe cause to be submitted to tbe jury and tbe motion for nonsuit was properly refused.

Tbe plaintiff testified that tbe deed was made on "Wednesday or Thursday, and that be put up notices Friday or Saturday forbidding tbe defendant to come on tbe land. As be bad testified that tbe purport of tbe deed which was written by tbe defendant, was different from what was represented, and tbe plaintiff could not read, it was competent to ask him “who told you that tbe deed conveyed all your interest in tbe land” — not to prove tbe declaration of tbe third party, but to corroborate tbe plaintiff that as soon as be learned that fact, be put up notices repudiating tbe-deed. Tbe endorsements upon tbe mortgage were properly excluded. Tbe mortgage note was not produced, tbe alleged endorsements on tbe mortgage would not have conveyed tbe debt, nor the property (for title in tbe endorsers was not shown), and it does not appear that tbe signatures of tbe alleged endorsers were proven. Nor was it competent to show by plaintiff that Louise Robeson owned tbe debt. It would have been only her declaration, if she bad made it, the debt not being shown or *360proven. Besides, the defendant testified that he bought the mortgage from her agent, E. Smith, her uncle, agent and former guardian; who, when introduced as a witness for the defendant, and aslced if he had such transaction with defend-' ant, limited his reply to a statement that he had never seen the alleged mortgage note. The existence of the note is not proven by any one, nor is its loss, if lost, attempted to be accounted for. The defendant’s prayers for instructions were given, except the fourth, which was on the reverse side of the sheet, and was overlooked by the court. This would not of itself correct the error in failing to give it, but the existence of the debt not having been shown, and the note not having been produced, the prayer should not have been given, except that part which was given in the charge. The evidence offered as to the purchase of the mortgage by the defendant from Louise Robeson, who was not shown to have the legal title, was irrelevant. The matter at issue is whether the defendant procured the execution of the deed by fraudulent representations, of which there was evidence, if believed by the jury.

It appears from the defendant’s evidence that he paid the plaintiff nothing; the existence of the alleged mortgage debt is not shown; and in the conflict of testimony as to the representations made to the plaintiff, the jury found that “the deed from plaintiff to the defendant was procured by the fraudulent misrepresentation of the defendant.” The other exceptions do not require discussion.

No Error.