#### WILEY T. TURNER v. MARTHA ANN DAVIS.

(Filed 10 September, 1913.)

1. Clerks of Court — Partition—Reversal of Judgment — Fraud—Record — Motion for Judgment — Statutes. '

Where it appears of record that the clerk of the Superior Court in proceedings to partition lands had rendered a judgment in plaintiffs favor, and had set it aside on defendants motion made before him seventeen months thereafter upon allegation of fraud in its procurement, and likewise that he had fraudulently prevented them from appearing and defending, to which plaintiff did not except, his motion in the Superior Court, in the cause •transferred, for judgment in his favor upon the whole record cannot be allowed; and it is held that the clerk was within the provisions of Revisal, see. 2494, in setting aside his former order, in plaintiffs favor, on defendant’s motion, at the time it was made before him.

2. Fraud — Judgment—Questions for Jury — Evidence.

Evidence is sufficient to sustain a verdict of the jury establishing fraud in the i>rocurement of a deed which tends to show that while the plaintiff was employed by the defendants to obtain for them a deed to the lands, he obtained from them, without consideration, a paper-writing which turned out to be the deed under which he claims, assuring them, at the time, that it was to their interest to sign the paper, and that it was unnecessary for him to comply with their request to read it to them, as he would not wrong them; and that after the deed had been executed to him he claimed no interest in the lands.

Appeal by plaintiff from Cline, J., at April Term, 1913, of Nash.

Tbis is a proceeding for partition of land, tbe plaintiff claiming, to be tbe owner of an undivided one-fiftb interest under a deed executed by Martba Ann Davis and ber children, all of wbom are defendants.

■Tbe summons was served on 10 February, 1910, and witbin ten days thereafter tbe plaintiff filed bis complaint. Tbe defendants filed no answer or demurrer to tbe complaint, nor did they enter an appearance in tbe proceeding until 17 July, 1911, or about seventeen months after tbe judgment bad been entered adjudging tbe plaintiff to be tbe owner of one-fiftb undivided interest in tbe land and appointing commissioners to make partition thereof.

*39On 17 July, 1911, the defendants made a motion before the clerk of the Superior Court to set aside the decree adjudging the plaintiff to be the owner ^an undivided one-fifth interest in the land and appointing commissioners to assign to-him the same, alleging that the plaintiff had procured the deed from them by fraud,,and that they were prevented by the fraud of the plaintiff from appearing- and defending in said proceeding.

The clerk allowed the motion as to the one-fifth of the land allotted to the plaintiff, and said defendants filed an answer alleging that the deed to the plaintiff was procured by fraud, to which no exception was taken.

The proceeding was then transferred to the civil-issue docket, and when called for trial the plaintiff moved for judgment on the whole record, for that the court was without jurisdiction or power by a motion in the cause to set aside the order of the clerk fixing the rights of the plaintiff*in the land after the expiration of more than one year'from date of the decree. .

The motion was overruled, and the plaintiff excepted.

At the conclusion of the evidence the plaintiff requested his Honor to charge the jury that there was no evidence of fraud, which was refused, and the- plaintiff excepted.

The jury answered the issue of fraud in favor of the defendants, and from the judgment rendered .the plaintiff appealed.

T. T. Thorne for plaintiff.

M. V. Barnhill and Jacob Battle for defendant.

AlleN, J.

The court could not, in any event, have granted the motion of the plaintiff for judgment upon the whole record, because an order had been made, to which no exception was taken, setting aside all orders in the proceeding affecting the rights of the defendants, and an answer was on file raising an issue of fraud; but we are also of opinion that the order of the clerk was fully authorized by Revisal, sec. 2494, which, after providing for confirmation of the report of commissioners appointed to divide land in partition proceedings, says: 4"Pro-vided, that any party, after confirmation, may impeach the proceedings and decrees for mistake, fraud, or collusion by petition in the cause.”

*40Tbe exception tbat there is no evidence of fraud in procuring tbe execution of tbe deed under wbicb tbe plaintiff claims is without merit. There is evidence tbat tbe defendants bad employed the plaintiff to get them a deed for tbe land; tbat be came to them and asked them to sign a paper, wbicb be said it was necessary for them to sign before they could get a deed and wbicb was tbe deed under wbicb tbe plaintiff- claims; tbat he was asked to read tbe paper, and be said.it was not necessary, and tbat be would not wrong tbe defendants out of anything; tbat tbe defendants did not know they were signing a deed; tbat tbe plaintiff paid nothing for tbe land, and tbat be denied to tbe defendants claiming any interest in the land after tbe execution of tbe deed.

There was evidence to tbe contrary, but we cannot pass on tbe weight of tbe evidence.

No error.