#### WILLIAM RAY GRIFFIN and M. A. GRIFFIN v. WYTHE M. PEYTON, R. E. BURTON, HARRY M. ROBERTS and J. P. RANDOLPH.

(Filed 6 June, 1928.)

For digest see Peyton v. Ghriffin, ante, 686.

Civil actioN before Moore, J., beard at Chambers in Asheville, 19 January, 1928.

The plaintiffs in this action are the defendants in the case of Peyton v. Griffin, ante, 685. Plaintiffs instituted an action against the defendants for damages for fraud, alleging that the defendant Peyton falsely and fraudulently pointed out the boundaries of certain lands which the plaintiffs purchased. Plaintiffs also ask for a cancellation of all notes issued in payment of commissions or profits and for an injunction restraining the defendants from prosecuting the action instituted by them against the plaintiffs. The trial judge was of the opinion that the plaintiffs were not entitled to the relief prayed for and denied the motion. Plaintiffs appeal.

Merrimon, Adams & Adams, J. W. Pless and Carter & Carter for plaintiffs.

Bourne, Parker & Jones and J. B. Swain for defendants. -

Bhogden, J.

This is a companion case to Peyton v. Griffin, ante, 685. It appears from the record in Peyton v. Griffin that a stipulation was entered into by counsel providing among other things “that the issue of fraud raised by the defendants in their answer and further defense shall be determinative of the issue of fraud set up and alleged as to all the outstanding notes of said series executed by the said William Ray Griffin and M. A. Griffin in whomsoever hands they may be and in whatsoever court said action is pending; but it is distinctly understood and agreed that the issue of innocent holder for value without notice is not to be determined by the answer to the issue of fraud in this case.”

It appearing, therefore, that the parties have agreed to abide the determination as to the issue of fraud in the case of Peyton v. Griffin, supra, with respect to all notes issued by Griffin in payment of commissions and profits in purchasing the land in controversy, it becomes unnecessary to discuss the questions involved in this case.

Affirmed.