#### J. E. CAVENAUGH v. H. A. JARMAN.

(Filed 29 October, 1913.)

1. Deeds and Conveyances — Parol Trusts — Grantor—Beneficiaries— Parties.

A grantor in a deed may not establish, contrary to the terms of his deed, a parol trust in 'himself to .the land conveyed, nor can other beneficiaries of the alleged trust have the trust established in their behalf, when they are not parties to the suit.

2. Judgments — Nonsuit—Adjudication.

Where a judgment of .nonsuit is entered upon demurrer, the judgment should only adjudicate that the complaint' does not state a cause of action and deny the right of recovery.

3. Pleadings — Amendments—Court’s Discretion — Appeal and Error.

The refusal of the trial judge, in his discretion, to allow an amendment to a pleading is not reviewable on appeal.

*3734. Judgments — Mortgages—Foreclosure Suits — Estoppel.

The plaintiff alleged- that a decree of foreclosure was entered against him, and the mortgaged premises sold at a price insufficient to pay off the amount of the mortgage; that an action was then instituted, which adjudged the amount due, condemning the land to its payment, and, after it was docketed, the plaintiff, an ignorant man, conveyed a certain other tract of his land to another, who then conveyed it to plaintiff’s wife, under advice and belief that this was the only way to secure a homestead to himself ; that a homestead in this land was allotted, to which exceptions were filed, eventuating in a judgment denying the homestead right. The defendant demurred: Held, the plaintiff is estopped by the former judgment from claiming his. homestead in this action.

5. Pleadings — Lemurrer—Judgment Objectionable — Costs.

The demurrer to the complaint in this action is sustained and the form of the judgment held objectionable, and the judgment is modified and the plaintiff and his surety on his prosecution bond taxed with costs.

Appeal by plaintiff from Qonnor, J., at July Term, 1912, of ÜNSLOW.

Tbe only parties to tbis action are J. E. Cavenaugh, tbe plaintiff, and H. A. J arman, tbe defendant.

Tbe complaint alleges, in substance, tbat in 1905 tbe plaintiff and bis wife executed a mortgage to -one Mills, conveying certain lands, to secure a debt; tbat upon default in tbe payment of tbe debt, an action was instituted against tbe plaintiff and bis wife in tbe Superior Court of Onslow County, in wbicb a decree was .rendered at' July Term, 1908, adjudging tbe amount due, and condemning tbe land to be sold to pay tbe same; tbat tbe land was sold under tbe decree and tbe proceeds applied to tbe judgment, leaving a balance of $382.52 due tbereon; tbat after said judgment was docketed tbe plaintiff conveyed another tract of land of 25 acres, wbicb belonged to bim, to bis son-in-law, and on tbe same day tbe son-in-law conveyed tbe land to tbe wife of tbe plaintiff; tbat execution issued on tbe judgment of 1908 to collect tbe balance due tbereon and was levied on tbe said 25 acres; tbat a homestead was allotted under said execution and exceptions thereto were filed, wbicb were passed on at *374April Term, 1912, and a judgment was then rendered substantially bolding tbat tbe plaintiff was not entitled to a homestead and directing the land to be sold; that said land was sold under execution on 1 July, 1912, and the defendant became the purchaser at the price of $530, and took a deed therefor; that protest was made against .the sale, upon the ground that it had not been properly advertised and was not being offered for sale at the hour allowed by law.

There was also allegation that the plaintiff was an ignorant man, and that the deed to his son-in-law and from him to the wife were executed in good faith and under advice that this was the best way to secure a homestead, and that the price paid by the defendant was inadequate.

The defendant demurred to the complaint, upon the ground that it failed to state a cause of action in any one, and also that it showed no title or interest in the plaintiff.

The demurrer was sustained, and the plaintiff excepted.

The plaintiff then moved the court to allow him to .amend the complaint by alleging in substance specifically that the plaintiff made the conveyance of the tract of land mentioned in the complaint, under which his wife obtained the deed therein mentioned, being ignorant of the true manner of securing to himself, his wife and children their homestead rights, and that the true purpose and intent of the transaction was that the said' property should be held in trust for'the purpose of securing to the said plaintiff,, his wife and children the homestead allowed by the Constitution of North Carolina; that there was no intent to defraud any creditors in so doing, but that the plaintiff, through' ignorance and advice of others, honestly believed that this was the proper way to obtain his homestead rights for the benefit of his wife and children, and such was the expressed trust attached to the said deeds therein mentioned. The court declined to permit the plaintiff to amend the complaint as above, holding also as a matter of law that such amendment was immaterial and could not affect the result of the action. '

To the court’s declining to allow such amendments and to its ruling the plaintiff excepted.

*375Tbe judgment also contains an adjudication of title, an order for a writ of possession against tbe plaintiff, and for an assessment of damages against tbe plaintiff and tbe surety on bis bond.

Tbe plaintiff excepted and appealed. .

G. V. Go.wper and Duffy & Eoonce for plaintiff.

McLean, Varser & McLean and Frank Thompson for defendant.

Per Curiam.

Tbe ruling of bis Honor on tbe motion to amend seems to bave been in tbe exercise of bis discretion, and would not be reviewable, but we concur in tbe opinion tbat if tbe amendment bad been allowed, tbe complaint as amended would not bare stated a cause of action.

Tbe facts are not clearly stated, but as tbey appear, tbe judgment of 1912 would be an estoppel, and if there was no estoppel,, tbe plaintiff could not establish a parol trust in bis own favor against tbe grantee in bis deed, under Gaylord v. Gaylord, 150 N. C., 222, and bis wife and children, alleged to be tbe other beneficiaries of tbe trust, are not parties.

Tbe exceptions to tbe form of tbe judgment are well taken. No answer has been filed by tbe defendant, and no facts are. admitted, and tbe judgment upon tbe demurrer should do no more than adjudicate tbat tbe complaint does not state a cause of action and tbat tbe plaintiff has no right to sue.

It also appears tbat tbe bond of tbe plaintiff does not purport, to cover anything except costs. .

Tbe judgment will, therefore, be modified to' tbe effect tbat tbe demurrer be sustained, tbe action be dismissed, and tbat tbe defendant recover of tbe plaintiff and bis surety bis costs.

Modified and affirmed.