#### A. W. ROUGHTON v. B. F. DUNCAN et als.

(Filed 10 September, 1919.)

Interpleader — Partition—Title—Funds in Court — Clerks of Court — Timber —Injunction—Pleadings.

Where an order restrained defendant, in possession of land, from cutting the timber thereon till the final hearing, in proceedings to partition it, involving title, and the order has been modified, by consent, so as to permit the defendant to continue to cut the timber upon condition that the money for the timber cut should be paid into the hands of the clerk of the Superior Court awaiting final disposition of the action, an order permitting a third party to intervene and claim the fund under a superior title is not erroneously entered; and without alleging any cause of action against either of the original parties, he may recover the fund in the hands of the clerk upon proving his title, as claimed by him.

Appeal by plaintiff from Devin, J., at August Term, 1919, of TYRRELL.

Tbis action was instituted, on tbe 27tb day of June, 1916, to bave a sale for partition of tbe lands described in tbe complaint and to compel an accounting by tbe defendant of tbe timber cut from tbe said lands. The plaintiff alleged that be was tbe owner of three-fifths undivided interest in tbe said lands, and that tbe defendant was tbe owner of the remaining two-fifths interest. At tbe time summons issued a temporary restraining order was also issued enjoining tbe defendant from further cutting upon said lands. At that time tbe original defendants, Duncan and Pritchard, were in actual adverse possession of tbe said lands, claiming title thereto; tbe latter cutting tbe timber under a contract witb tbe former, and delivering tbe same, also under contract, to tbe Southern Roller Stave and Heading Company. On 20 July, 1916, tbe *6cause coming on again to be beard, tbe restraining order was modified by consent so as to permit tbe defendants to continue cutting upon tbe condition that tbe money for tbe timber cut, botb before and after tbe institution of tbe action, be paid by said company into tbe bands of tbe clerk of tbe Superior Court of Tyrrell County to await tbe determination of tbe action. Under tbe terms of tbis order tbe following' payments were made to tbe said clerk by tbe said company:

August 1, 1916.$124.85

September 12, 1916. 82.41

September 28, 1916. 4.31

October 30, 1916. 119.07

At November Term, 1916, one B. F. Spruill, son-in-law of Duncan, upon bis own ex parte application made upon affidavit, stating that be claimed to be owner of tbe locus in quo, and asking to be made a party defendant, was permitted by the court'to intervene and become a party defendant to said suit. On 10 September, 1917, Spruill filed a pleading-in which it appeared that be claimed to own tbe lands in hostility to botb plaintiff and defendant upon an alleged paramount and independent title. At October Special Term, 1917, and at November Term, 1917, orders were made in the cause allowing “time to amend pleadings.” At Spring Term, 1918, of said court, Spruill having failed to amend bis pleadings so as to allege any cause of action connected with either tbe plaintiff or defendant, plaintiff, after due notice, moved to strike out tbe order of tbe court allowing Spruill to intervene, and also to strike out tbe pleading filed by Spruill in consequence of such order. Motion denied, and plaintiff excepted. Upon tbe trial Spruill, inter-venor, introduced a chain of paper title deraigned from tbe State and vesting in Spruill on 2 August, 1916, by deed from John L. Roper Lumber Company.

At tbe conclusion of tbe intervenor’s testimony, and also at tbe conclusion of tbe whole evidence, plaintiff moved for judgment as of non-suit. Motion denied, and plaintiff excepted. Judgment rendered as appears in tbe record, to which plaintiff excepted and appealed to tbe Supreme Court.

Meelcins & McMullan attorneys for plaintiff.

Ehringhaus & Small attorneys for intervenor.

Aydlett, Simpson & Sawyer and B. F. Duncan for defendant.

AlleN, J.

Tbe case of McNair v. Pope, 104 N. C., 351, is decisive against tbe plaintiff on botb questions presented by tbe appeal.

In that case tbe action was commenced in 1885 to establish a parol *7trust, and pending the action a receiver was appointed, who collected certain rents and profits from tlie land, which he held" subject to the order of the court, and A. and ~W. McQueen were allowed to intervene for the purpose of claiming the rents and profits against .both parties to the action under an agricultural lien executed in 1886, and it was held that “His Honor very properly allowed A. and "W. McQueen, the agricultural lienees, to intervene and assert their alleged rights in the fund held by the receiver,” and that it was clear “that the lienees are entitled to be paid for any advances, etc.”

Affirmed.