#### H. A. McLAURIN v. T. F. WILLIAMS.

(Filed 3 April, 1918.)

1. Landlord and Tenant — Leases—Fraud—Title.

Where the plaintiff has been in possession of the lands in dispute for twenty-three years and continues therein, and has executed a lease thereof to the defendant, it may be shown in evidence that the defendant induced the lease by fraud and misrepresentation, and upon establishing this as a fact, the relation of landlord and tenant is unavailable as a defense.

2. Same — Evidence—Questions for Jury — Trials.

Evidence that the defendant has induced the plaintiff, an ignorant colored man, to accept a lease of his own land upon defendant’s representation that it was necessary to get a paper title to the lands after it had been sold for taxes, is sufficient upon the question of defendant’s fraud and misrepresentation to take the issue to the jury.

3. Instructions — Contentions—Tax Deeds — Deeds and Conveyances — Appeal and Error.

Where the plaintiff has permitted the lands in controversy to be sold for taxes, and the defendant claims under the tax deed, it is not error for the court to forbid the defendant’s counsel to argue to the jury that neither the plaintiff nor his ancestor had paid anything for the land.

4. Instructions — Contentions — Appeal and Error — Objections and Exceptions.

A statement by the court of the contention of a party properly arising in the controversy is not error -and will not be considered on appeal when not excepted to at the time.

5. Instructions — Colored Persons — Fair Trials — Appeal and Error.

A charge to the jury, where one of the parties is a white and the other a colored man, that they should give the litigants a fair and impartial trial regardless of color is not erroneous.

*2926. Tax Deeds — Deeds and Conveyances — Liens — Instructions — Appeal and Error.

Where the controversy over lands depends upon the validity of defendant’s tax deed, it is not error for the court to charge the jury that if plaintiff recovered in the action he would have to repay the defendant the moneys he has expended; and where the verdict is in plaintiff’s favor, a judgment is proper making the amount a lien upon the lands.

Appeal by defendant from Bond, J., at September Term/1917, of CUMBERLAND.

Oooh & Goolc and J. M. Williford for plaintiff.

Bullard & String-field for defendant.

Clark, 0. J.

The complaint alleges that the plaintiff is the owner of the tract of land described, containing 148 acres, and has been in the peaceable, quiet and adverse possession of said land, claiming it as his own, for more than twenty-three years, exercising all the rights of ownership, but that the defendant has trespassed upon said land, interfering with his farming thereon, and has threatened the plaintiff to put him on the county roads, and otherwise sought to intimidate the plaintiff, who is an ignorant colored man; and being fearful to proceed with the cultivation of said land, he brought this action to restrain the defendant from interfering with the possession of the land and asked a restraining order. The defendant answered that the plaintiff had rented the land in 1916 from him and was estopped to deny defendant’s title.

The plaintiff in his reply averred that the defendant bought the land at a sale for taxes due by the plaintiff for the year 1914; that at such sale by the sheriff on 3 May, 1915, the defendant bought the land and in January, 1916, notified the plaintiff that he would ask a deed from the sheriff on 3 May, 1916; that the' defendant had bought the land at the tax sale for $14.55 taxes, but that the land is worth at least $1,000. The complaint alleged, and the plaintiff testified, that when this notice was given he told the defendant that he would get the money and pay defendant, but that the defendant told him he need not do that, that he wanted to help him get a paper title for the land, and to wait till after 3 May, 1916, when he (defendant) would get a sheriff’s deed for it, and that thereafter the defendant told the plaintiff that it was necessary for him to sign a lease in order to help him strengthen his chances to get a good title. It is alleged and in evidence that plaintiff, relying upon these representations of the defendant, did not get the money to pay the taxes before 3 May, 1916, and signed the lease in August of that year, as the defendant had told him it was necessary to do so in order to perfect his title.

*293There was evidence to tbe contrary from tbe defendant, but tbe jury found, in response to tbe issues, tbat tbe defendant agreed to get tbe title from tbe sheriff for tbe land in order to make tbe plaintiff’s title good, and Williams bad expended altogether in getting deed for tbe land from tbe sheriff $63.50, to which tbe defendant is entitled to add any taxes paid since tbat time, and tbat tbe plaintiff executed tbe lease to tbe defendant on tbe understanding with him tbat it was made in order to use to make McLaurin’s title good.

Tbe court properly refused to grant tbe motion to dismiss. If, as tbe jury find, tbe lease was secured by tbe defendant for tbe purpose of perpetrating a fraud on tbe defendant, tbe plaintiff could have tbe same declared void without surrendering possession, and besides, tbe plaintiff, according to tbe evidence, has never been out of possession. A lease obtained by fraud and misrepresentation, as found by tbe jury, did not create tbe relation of landlord and tenant, and there was no agreement, according to these findings, for an option.

While tbe counsel for tbe defendant was addressing the jury, urging tbat tbe grandfather of tbe plaintiff bad never paid for tbe land, and tbat tbe plaintiff did not have a good title for it, tbe court interrupted tbe counsel by saying tbat be could not permit tbat argument as tbe defendant was claiming under a tax deed, tbe land having been sold for tbe plaintiff’s taxes. We do not see any error in this, nor in tbe court refusing to permit tbe case to turn upon tbe question whether tbe plaintiff’s ancestor bad paid for tbe land. There was neither allegation nor issue presenting such proposition. It was in evidence tbat tbe plaintiff bad been in uninterrupted possession 23 years. Nor was there any error in stating tbe contentions of tbe plaintiff tbat tbe defendant bad misled him in order to prevent bis redeeming tbe land and tbat tbe plaintiff contended tbat tbe land — 148 acres — was worth $1,000 to $1,400, and tbat be would not have let tbe defendant get tbe tax title if be bad not been misled by tbe defendant’s promises to buy tbe land for bis benefit at tbe sheriff’s sale. This was merely a statement of tbe plaintiff’s contention in tbe complaint and in tbe argument and, besides, was not excepted to at tbe time.

Neither was there any error in tbe judge charging tbe jury tbat in a trial where one party is white and tbe other is colored tbe jury should be fair and just and give them a fair and impartial bearing, regardless of tbe color of tbe litigants. Nor was there-any error in tbe court instructing tbe jury tbat if tbe plaintiff recovered tbe land be would have to pay Williams tbe taxes, costs, and interest as provided by law.

Tbe result of tbe trial depended almost exclusively upon tbe controverted issues of fact as presented by tbe pleadings and submitted to tbe jury. Tbe verdict as to tbe second issue was set aside, and at tbe next *294term of tbe tíourt it was found by tbe jury, tbat tbe amount due tbe defendant for taxes and tbe interest' allowed by law and cost attendant amounted to $39.84, for wbicb sum judgment was rendered in favor of tbe defendant and tbe same declared to be a lien upon tbe land, but tbat subject to sucb lieu, tbe defendant beld the naked legal title to tbe lands in trust for tbe plaintiff, to whom be should convey in fee simple all interest and title therein upon payment of tbe aforesaid lien, and tbe defendant was perpetually enjoined from trespassing upon said land or in any way interfering with tbe possession thereof by tbe plaintiff. And judgment was rendered in favor of tbe plaintiff for tbe costs of tbe action.

No error.