#### BRYANT TIMBER COMPANY v. TILGHMAN LUMBER COMPANY.

(Filed 24 March, 1915.)

1. Deeds and Conveyances — Trials—Evidence—Contracts to Convey Timber — Tender of Deed.

In an action to compel a defendant to perform bis contract to purchase timber on certain lands of tbe plaintiff it is competent for tbe plaintiff to introduce in evidence bis deed, wbicb be bas previously tendered, purporting to convey tbe timber, for tbe purpose of showing he was ready and willing to perform his part of tbe contract.

*4552. Deeds and Conveyances — Contracts to 'Convey Timber — Trials—Defective ' Title — Parties—Evidence.

Where the title to lands of the plaintiff, in controversy, depends upon a judgment in certain former proceedings for their sale, and defendant introduces evidence that a party to that proceeding had filed in the clerk’s office a petition to set aside the sale on the ground that he had been made a party thereto without his authority, 'which was not served and which is relied on as evidence of a defective title, it is competent to show by witnesses, who were present when the petition was prepared and knew its contents, that the petitioner had authorized his joinder as a party, to the proceedings for the sale of the lands.

3. Appeal and Error — Unanswered Questions.

Unanswered questions, without anything appearing of record to show their materiality, will not be considered on appeal.

4. Appeal and Error — Trials—Damages—Evidence—Deeds and Conveyances —Tender of Deed.

Where the plaintiff has tendered his deed under his contract to convey standing timber, and demands damages in his action for the burning of timber on the lands, the rejection of evidence upon the question of the damages, without showing that they occurred prior to the tender of the deed, is not erroneous.

Appeal by defendant from Daniels, J., at October Term, 1914, of SAMPSON.

Action to recover tbe purchase price of certain timber on a tract of land known as tbe Wilson tract. '

On and prior to 14 June, 1907, tbe plaintiff was tbe owner of certain timber, timber rights and easements in Sampson County, and on said date entered into a contract with tbe defendant to sell certain of said timber upon tbe terms and conditions as set out in a contract at that time entered into between plaintiff and defendant. Tbe defendant, complying with said contract and agreement, took deeds for all tbe timber described, upon tbe terms and conditions therein contained, and paid for same, with tbe exception of tbe one tract which is in dispute. This particular tract tbe defendant claims it was not compelled to take on account of tbe fact that tbe said contract does not require, it to take any of tbe said timber to which tbe plaintiff has not a good title, or any of said timber to which tbe plaintiff does not have a title which “is good and sufficient and free from all encumbrances,” and a title which is “absolutely free from all conditions and encumbrances.” Tbe defendant also contends that they were not required to take said timber until tbe plaintiff bad tendered them such title as above referred to,- and that they should then have a period of ten days within which to investigate such title.

*456Tbe jury returned tbe following verdict:

1. Did tbe plaintiff, Tbe Bryant Timber Company, tender to defendant, Tilgbman Lumber Company, a good and sufficient deed for tbe timber rights and easements as set forth in tbe complaint, and if so, when? Answer: “Yes; 5 November, 1909.”

2. Did defendant, 'Tilghman Lumber Company, wrongfully refuse to accept said deed? Answer: “Yes.”

3. What was tbe price agreed to be paid for said timber rights and easements? Answer: “$7,500.”

4. What amount is plaintiff entitled to recover of defendant for said timber? Answer: “$7,500, with interest from lB November, 1909.”

His Honor charged tbe jury: That if tbe jury shall believe all tbe evidence in tbe case, they should answer tbe first issue “Yes; 15 November, 1909,” and tbe second issue “Yes,” and tbe third issue “$7,500, with interest from 15 November, 1909.”

Tbe defendant excepted.

G. M. Faircloth and II. L. Stevens for plaintiff.

Fowler, Grumpier & Gavin for defendant.

AlleN, J.

It was conceded upon tbe argument, and properly so, that tbe instructions to tbe jury are correct if there is no error in tbe admission of evidence, and upon a careful consideration of tbe record we find none.

It is true, as contended by tbe defendant, that a deed only takes effect from delivery, but it was competent for tbe plaintiff to introduce in evidence its deed purporting to convey tbe timber in controversy to tbe defendant for tbe purpose of showing that it was ready and willing to perform its part of tbe contract.

Tbe plaintiff claimed title in part under a proceeding for tbe sale of lands to which J esse F. Wilson was a party, and on tbe morning of tbe trial of this action Jesse E. Wilson filed in tbe clerk’s office a petition •which was not served, seeking to set aside tbe proceeding upon tbe ground that be bad been made a party thereto without authority, and this was relied on by tbe defendant as evidence of a defect in tbe title of tbe plaintiff.

It then became competent for tbe plaintiff to introduce Messrs. Grady and Faison and to prove by them that Jesse E. Wilson authorized bis joinder as a party to tbe proceeding; that be was present when tbe petition was prepared and knew its contents.

Tbe exceptions of tbe defendant to tbe refusal of tbe court to permit a witness to answer certain questions as to damage to tbe timber by fire and otherwise since tbe execution of tbe contract are without merit.

*457In -the first place, there is nothing in the record to indicate what would have been the answers to the questions. (Lumber Co. v. Childerhose, 167 N. C., 34), and again, it does not appear that if there was a depreciation in value, it occurred prior to the time the plaintiff tendered its deed to the defendant.

There was ample evidence to support the findings of the jury, and the motion for judgment of nonsuit was properly denied.

No error.