#### E. H. FRANKS, Administrator, v. CHRISTINE NOLOP et al.

(Filed 14 December, 1913.)

1. Corporations — Officers—Principal and Agent — Purchase of Land —Equity—Consideration Advanced bys Third Person — Trials— Pleadings-r-lssues,

Where a corporation sues for the title to lands upon the ground that the grantor and the grantee in the deed were officers and acted for the company in the transaction, it cannot invoke the equitable jurisdiction of the court without repaying money advanced for the purchase by a third and innocent person, a party to the action, and used in procuring the title and for the organization of the corporation; and an issue thereon may be submitted though not raised by the pleadings.

2. Instructions — Contentions—Exceptions—Appeal and Error.

The exception to a statement of the contentions of the parties made in the judge’s charge is not held for reversible error in this ease.

Appeal by Mica Company, interpleader, from Ferguson, J at August Term, 1913, of MacoN.

Tbis is a proceeding to sell lands for assets, in which the Standard Mica Company intervened, upon the allegation that it is the owner of the land described in the petition.

There was evidence tending to prove that the Standard Mica Company was duly incorporated and purchased the “Lyle Mill Enob Mica Mine” in Macon County, and within .a few months after it was organized, A. L. Roberts, director, obtained a judgment against the corporation, and under this he had the property sold and bought it in; that he sold the property to ’William B. Angle, the secretary of the corporation; that Angle died; that .Christine Nolop brought action against Angle’s administrator in North Carolina, and obtained a judgment for debts claimed to have been contracted by his last illness; that the administrator brings this proceeding to have the property subjected to Angle’s debts, and the Standard Mica Company intervenes and pleads that it is the owner of the property.

It was admitted that Roberts and Angle were officers of the company, and Mrs. Nolop testified in substance that she ad*391vanced to tbem $850 tod $250 to enable them to organize the company and procure title to the land in controversy, under an agreement that the title should be held by Angle until these sums were repaid to her.

The jury returned the following verdict:

1. Was William B. Angle secretary of the Standard Mica Company of North Carolina before and at the time of the execution of the deed from A. L. Roberts to William B. Angle? Answer: Tes.

2. What sum, if any, did Mrs. Christine Nolop advance to William B. Angle for the purpose' of purchasing the property in question from Roberts ? Answer: $850.

3. What amount did said William B. Angle pay A. L. Roberts as consideration of the deed from Roberts to Angle? Answer: $850.

4. Was it agreed before and at the time of the advancement so made and the taking of the deed from A. L. Roberts by William B. Angle that the property was to be held in trust by the said Angle or Mrs. Christine Nolop until the amount advanced, together with $2,500 theretofore put into the company by Mrs. Christine Nolop, was repaid to her; and if so, was such agreement made between the officers of the Standard Mica Company of. North Carolina and Mrs. Christine Nolop and William B. Angle ? Answer: Yes.

The Mica Company excepted to the submission of the fourth issue.

Judgment was entered upon the verdict, and the Mica Company appealed.

R. D. Sisle for plaintiff.

Johnston & Horne for defendant.

Robertson & Benbow and Francis V. Bobbins for Mica Company.

Per Curiam.

The fourth issue is not directly raised by the pleadings, but as the Mica Company is proceeding upon the idea that when its officers bought the land they held the title in trust for the company, it cannot invoke the jurisdiction of the court *392without repaying the money advanced: by a third and innocent party, in procuring the title to the property and completing the organization of the company..

It does not appear that either party has been deprived of the opportunity of offering evidence, and if necessary, we would permit an amendment now in the interest of justice.

The exception to the charge is to a statement of the contentions of the parties, and is without merit.

The other exceptions are formal.

No error.