#### M. E. BOYER v. W. G. JARRELL.

(Filed 1 December, 1920.)

1. Appeal and Error — Assignments of Error* — Objections and Exceptions— Motions — Dismissal.

An assignment of error cannot Lave the effect of creating or enlarging an exception taken on the trial, and in making them the appellant after deliberation only selects such of the exceptions taken upon the course of the trial as he then relies upon and desires to present to the Supreme Court, on appeal; and where there are no exceptions in the record as a basis for the assignments of error, a motion to affirm the judgment appealed from will be allowed.

2. Appeal and Error — Reference—Objections and Exceptions..

On appeal from a judgment upon the report of a referee, the appellant must point out the alleged errors by specific exceptions to the findings of facts and conclusions of law, in apt time, and they will not be considered when taken for the first time in the Supreme Court on appeal.

3. Appeal and Error — Reference—Evidence.

Findings of fact by the Superior Court judge upon the report of a referee are binding upon the Supreme Court on appeal, when supported by evidence.

4. Appeal and Error — Objections and Exceptions — Reference—Judgments.

Exception on appeal that the trial judge did not consider the evidence in passing upon the exceptions to the report of the referee, cannot be considered when contradictory of the judgment stating he had done so.

*4805. Appeal and Error — Reference—Pleadings—Amendments—Findings.

Exception, to the action of the trial judge in striking out amendments to pleadings allowed by the referee becomes immaterial on appeal when the facts so alleged have been found adversely to the appellant, on supporting evidence.

Appeal by defendant from Lane, Jat tbe Spring Term, 1920, of MeckleNbukg.

This is an action to recover tbe balance due on certain promissory notes. Tbe defendant filed answer admitting tbe execution of tbe notes, but alleging tbat certain property of defendant embraced in a deed of trust securing said notes, bad been sold under tbe deed of trust and bought by plaintiff at a grossly inadequate price, and asking, therefore, tbat tbe sale to plaintiff by tbe trustee be set aside and tbe property be resold. Tbe plaintiff admitted tbat be bad purchased tbe property at tbe trustee’s sale, but denied tbat tbe property was sold for a consideration so grossly inadequate as to avoid tbe sale. Tbe case was referred to referees, wbo filed a report finding tbat there bad been a complete settlement between plaintiff and defendant, and made certain other findings to be considered by tbe court if tbe findings as to a settlement should be set aside. Tbe plaintiff thereupon filed exceptions to tbe report of tbe referees, which came on for bearing before Judge Lane. Tbe defendant came in and admitted tbat tbe finding of a settlement by tbe referees was erroneous, and consenting tbat tbe exceptions to tbat be sustained; and Judge Lane, after bearing tbe evidence and argument of counsel,,sustained other exceptions of plaintiff and found tbe facts.

Tbe referee permitted tbe defendant to file an amendment, alleging tbat the sale was not properly advertised, which was stricken out by tbe judge presiding.

Tbe following judgment, containing tbe findings of tbe judge, was rendered:

“This cause coming on to be beard upon tbe report of tbe referees, and tbe exceptions filed thereto by tbe plaintiff, and being beard, and the court having duly considered tbe evidence produced in tbe cause, tbe argument of tbe counsel, and tbe report of tbe referees, and tbe exceptions, tbe court sustains tbe exceptions of tbe plaintiff numbered 1 to 14, inclusive, and from tbe evidence in tbe ease tbe court finds tbe following facts:

“1. Tbat on 29 October, 1918, tbe defendant executed to tbe plaintiff bis four several promissory notes, aggregating $6,527.50, all bearing interest from date, payable annually, one for $881.88 maturing 29 Octor ber, 1914; one for $1,881.87, maturing 29 October, 1915; and one for $1,881.88, maturing 29 October, 1916; and one for $1,881.87, maturing 29 October, 1917; and that, at the same-time 'defendant, to secure said *481notes, executed to C. W. Tillett, Jr., trustee, a deed of trust conveying to bim a bouse and lot on East Seventh Street, said deed of trust providing tbat upon failure to pay any of said notes at maturity, or any part of tbe interest on any of said notes wben due, tben all of tbe said notes should immediately become due and payable, and upon request of tbe bolder of any of said notes tbe said trustee should sell tbe said property at public auction at tbe courtbou.se door of Mecklenburg County, after advertising said sale for thirty days at tbe courthouse door and three other public places in Mecklenburg County, or in a newspaper published in said county, said deed of trust being exhibit ‘0/ having been recorded in tbe office of tbe register of deeds of said county, in Book 323, page 602.

“2. Tbat tbe defendant did not pay said notes as they became due, and did not pay the interest on same according to tbe terms thereof, and on said 1 January, 1916, bad paid only $102.91 on said notes.

“3. Tbat on 24 January, 1916, plaintiff entered into a written agreement with defendant (exhibit ¿E’), tbat if tbe defendant would pay bim $35 per month to be credited on said notes he would not press him for payment until January, 1917, in order to enable defendant to make private sale of said property, if possible; tbat plaintiff waited on defendant until January, 1917, and longer, but defendant did not sell said property or pay said notes or the interest due thereon, but between 24 January, 1916, and 2 June, 1917, did pay tbe plaintiff tbe sum of $595.

“4. Tbat on 14 June, 1917, there was due on said notes all tbe principal sum of $6,527.50 and $905.86 interest over and above all payments which had been made on said notes; and on said date the plaintiff requested tbe said trustee to sell the property embraced in said deed of trust under tbe terms thereof.

“5. Tbat on 16 July, 1917, tbe trustee, after advertising tbe property embraced in said deed of trust according to terms thereof, and after notifying defendant twice, sold same at public auction to plaintiff for tbe price of $2,500, which sum was credited on tbe notes, and said trustee executed to plaintiff a deed for said property, which is marked ex1 hibit D.’

“6. Tbat the trustee caused a proper notice of sale, setting forth and describing the property to be sold and the time and place of sale, to be posted at the courthouse door and three other public places in Mecklen-burg County thirty days before said sale, and also bad same published in tbe Charlotte News, an evening paper published in Charlotte, N. C.j in the issues published on Friday, 15 June; Wednesday, 20 June; Wednesday, 27 June, and Wednesday, 4 July, 1917, and also gave personal notice to tbe defendant by letter on 14 Juné, 1917, and over tbe telephoné *482a few days before tbe sale, and that said advertisement was legal and regular and in accordance with tbe terms of tbe deed of trust.

“7. That at tbe time of said sale the amount due on the said notes, including interest, was $7,465.99, and after applying tbe amount brought by tbe property at said sale there was left a balance of $4,965.99; that no further payments have been made on said notes, and there is now due by defendant to plaintiff a balance of $4,965.99, with annual interest thereon from 16 July, 1917.

“8. That at tbe said trustee’s sale there was no fraud or collusion or suppression of bidding by tbe plaintiff, tbe trustee, or any other person, but that said sale was openly and fairly conducted and held by tbe trustee on a regular sale day in tbe jiresence of a number of persons [variously estimated from 6 to 15) who were present at tbe sale.

“9. That at said trustee’s sale tbe property was sold subject to prior encumbrances, which amounted to $1,498.40, same being an indebtedness of $1,000 due to an insurance company secured by deed of trust on tbe property, street paving assessments amounting to $448, and taxes amounting to $41.40; that tbe prior encumbrances, which have been paid by tbe plaintiff, or will have to be paid by him to perfect bis title, added to tbe $2,500 bid at tbe sale and tbe $35 cost and expenses of sale paid by him, make tbe total cost of tbe property to plaintiff $4,024.40.

“10. That said property was listed for taxation in 1917 at $3,450.

“11. That on account of tbe war there was very little demand for real estate in July, 1917, and very few sales took place, except forced sales, and at such sales property sold at very low prices.

“12. That, considering tbe state of tbe real estate market in Charlotte, in July, 1917, $4,024.40 was a reasonable and fair price for tbe property to bring at a forced sale, and was at least 50 per cent of its fair market value at that time.

“13. That after plaintiff bad purchased said property at tbe said trustee’s sale, defendant rented same from plaintiff, agreeing to give plaintiff certain detachable screens and to assign certain unexpired fire insurance policies in return for being allowed to occupy tbe premises until 31 August, 1917, tbe agreement being reduced to writing (exhibit ‘F’) ; that defendant held the premises under said contract until 31 August, 1917, when be moved out and relinquished possession to plaintiff.

“Tbe court bolds as a matter of law:

“1. That tbe defendant is due tbe plaintiff a balance of $4,965.99, with interest thereon from 16 July, 1917, until paid.

“2. That there was no fraud or suppression of bidding at tbe sale held by tbe trustee, and tbe price bid for tbe property was not so grossly inadequate as to invalidate said sale.

*483“3. Tbat tbe defendant, by tbe contract of 18 July, 1917, ratified and confirmed tbe sale of tbe property by tbe trustee, and is estopped thereby to question tbe validity thereof.

“4. Tbat tbe plaintiff is tbe owner of tbe property conveyed to him by tbe trustee, and tbe defendant now has no right or equity therein.

“It is therefore ordered, adjudged, and decreed tbat tbe plaintiff recover of tbe defendant tbe sum of $4,965.99, with interest thereon from 16 July, 1917, until paid, and tbat tbe plaintiff is tbe owner of tbe property described in tbe answer, and tbe defendant has no right or equity therein. It is further adjudged tbat tbe plaintiff recover of tbe defendant tbe costs of this action, to be taxed by tbe clerk of this court.”

Tbe defendant excepted and appealed.

W. T. Shore and Stacie, Parlcer & Craig for plaintiff.

J. D. McCall, Clarleson, Taliaferro & Clarleson, and W. L. Marshall for defendant.

AlleN, J.

Tbe plaintiff moves in this Court to affirm tbe judgment upon tbe ground tbat there are no exceptions in tbe record as a basis for tbe assignments of error, and tbe motion must be allowed.

“Tbe object of an assignment of error is not to create a new exception, which was not taken at tbe bearing, but to select from those which were taken such as tbe appellant then relies on after be has given more deliberate consideration to them than may have been possible during tbe progress of tbe trial or bearing. Tbe assignment of error, therefore, must be based upon tbe exception duly taken at tbe time it was due in, tbe orderly course of procedure, and should coincide with and not be more extensive than tbe exception itself. In other words, no assignment of error will be entertained which has not for its basis an exception taken in apt time.” Harrison v. Dill, 169 N. C., 544.

• Tbe exception to tbe judgment “Is not sufficient to bring up for review tbe findings of tbe judge. Tbe alleged errors should be pointed out by specific exceptions as to findings of fact as well as law. Findings of fact by tbe judge are binding on us where supported by evidence, and when it is claimed tbat such finding is not supported by any evidence, tbe exceptions and assignments of error should so specify. Such objection cannot be taken for tbe first time in this Court. Joyner v. Stancill, 108 N. C., 153; Hawkins v. Cedar Works, 122 N. C., 87.” Sturtevant v. Cotton Mills, 171 N. C., 120.

Tbe defendant has, however, lost nothing by failing to enter tbe exceptions, because tbe findings of fact are supported by evidence, and therefore conclusive on us, and they destroy tbe defense alleged in tbe answer and amended answer.

*484Tbe objection that tbe court did not .examine tbe evidence is contradicted by the recital in tbe judgment, wbicb is, “and tbe court having duly considered tbe evidence produced in tbe cause.”

There is no exception to tbe ruling of bis Honor striking out tbe amended answer, wbicb tbe referee permitted to be filed, but if exception bad been entered it would amount to nothing, because tbe judge has found tbe facts against tbe defendant on tbe matters alleged in tbe amended answer as a defense.

Affirmed.