#### PARDON v. PASCHAL.

(Filed November 7, 1906).

Ejectment — Abandonment—Deed by Wife Alone — Exception ,as to No Evidence.

1. In a.n action of ejectment, where the plaintiff claimed title under the •will of his wife, and the defendant claimed under a deed executed by the wife alone, a charge that “if the plaintiff had permanently abandoned his wife prior to and at the time of the execution of the deed to the defendant, it was a valid conveyance under Pevisal, sec. 2117, and the plaintiff would not be entitled to recover,” is correct.

2. Where it does not appear in the record that the appellant requested the Court to charge the jury that there was no sufficient evidence of abandonment, or that he. handed up any prayer for instructions, he cannot be heard to raise that question by motion to set aside the verdict.

ActioN of ejectment, by Thomas Pardon against Rachel Paschal, heard by Judge G. 8. Ferguson and a jury, at the June Term, 1906, of the Superior Court of GuilfoRD. From a judgment for the defendant, the plaintiff appealed.

Scott & McLeam, for the plaintiff.

G. 8. Bradshaw for the defendant.

Clark, O. J.

The plaintiff claims title to the land in controversy under the will of his wife, Sarah Yates Pardon. The defendant claims under a deed executed by the wife alone, 4 January, 1904. The Court charged the jury that if the plaintiff had permanently abandoned his wife prior to and at the time of the. execution of the deed to the defendant, it was a valid conveyance under Nevisal, sec. 2117, and the plaintiff would not be entitled to recover. The charge of the Court is clear and free from error upon this, the only question at issue on the trial, and presents fully the contentions of both parties.

*539Tbe only exception presented in tbe brief of tbe appellant is tbat there is no sufficient evidence of abandonment, and that tbe Judge should have so instructed tbe jury. It nowhere appears in tbe record tbat tbe plaintiff requested tbe Court so to charge, or that tbe plaintiff banded up any prayer for instructions to tbe jury. ILe cannot be beard, therefore, to raise tbat question by motion to set aside tbe verdict. “If be is silent when be should speak, be ought not to be beard when be should be silent.” Boon v. Murphy, 108 N. C., 192, and cases cited. If it is any satisfaction to tbe plaintiff to know it, we will state tbat an examination of tbe record discloses ample evidence to justify tbe Court in submitting tbe matter to tbe jury.

No Error.