#### J. R. HENDERSON v. R. L. ELLER.

(Filed 6 May, 1908).

1. Pleadings — Evidence—Relief—Wrong Remedy Sought — Parties— Nonsuit.

In an action demanding judgment for title to and possession of land, when it appears from the pleadings, taken in connection with the evidence, that a direct action to charge the land with an indebtedness should have been brought, and no motion to amend the pleadings was made, a motion as of nonsuit upon the evidence was properly allowed.

2. Judgments — Nonsuit—Another Action — Limitations of Actions.

When a motion as of nonsuit upon the evidence is sustained the plaintiff may bring another action within one year.

AotioN tried before Ferguson, J., and a jury, at January Term, 1908, of Wilkes.

Tbe plaintiff alleged that be-was tbe owner in fee and entitled to tbe possession of tbe land in controversy, and that tbe defendant was wrongfully in possession and unlawfully withholding it from him.

A motion as of nonsuit upon tbe evidence was sustained in tbe lower court upon tbe ground that tbe pleadings, taken in connection with tbe evidence, developed that defendant’s title was attacked for fraud, and that a direct action to charge tbe land w-itli an indebtedness to plaintiff should bave been brought, to which other necessary parties should be made. Tbe plaintiff made no motion to amend bis pleadings. Erom tbe judgment sustaining tbe motion tbe defendant appealed.

*58317. 17. Barber for plaintiff.

Finley & Hendren for defendant.

Per Curiam.

Tbe court below allowed tbe motion of tbe defendant to nonsuit plaintiff upon tbe ground tbat under tbe form of tbe pleadings, taken in connection with tbe evidence, a direct action to charge the land with tbe indebtedness should have been brought, to which all necessary parties should be made. '

As no motion to amend tbe pleadings was made, bis Honor properly sustained tbe motion. Plaintiff may bring .another action within one year. Tussey v. Owen, ante, 335.

Affirmed.