#### CAROLINA MOUNTAINS REALTY CORPORATION v. RALPH R. FISHER et al.

(Filed 9 January, 1929.)

Appeal and Error — Record—Matters Not Set Out in Record Deemed Without Error.

Exceptions to evidence taken before a referee, considered by the trial judge in ruling on the exceptions, will not be considered on appeal when such evidence does not appear in the record.

Appeal by defendant from Shenck, J., at July-August Term, 1928, of TRANSYLVANIA.

Civil action to recover the amount advanced under a contract between the parties, whereby the plaintiffs agreed to purchase, and the defendant *504agreed to convey, not later than 15 May, 1926, a marketable, unencumbered title to a large area, of land situate in Transylvania County, the plaintiffs alleging that the defendant had failed to secure and was yet unable to convey an unencumbered title to the lands in question — the liens and encumbrances thereon exceeding in amount the balance of the purchase price — and that, under the express provisions of the contract, the plaintiffs were entitled to a refund of the one-fourth cash payment advanced.

The defendant, answering, prayed for specific performance and contended at the time of trial that the title had then been perfected.

A reference was ordered under the statute, and the matter heard by Hon. T. J. Johnston, who found the facts and reported the same, together with his conclusions of law, to the court. Upon exceptions duly filed to the report of the referee, the same was modified and affirmed, and judgment entered denying specific performance to the defendant and awarding the plaintiffs recovery in the sum of $13,279.71, with interest from 15 December, 1926.' Defendant appeals, assigning errors.

W. E. Breese, Merrimon, Adams & Adams and D. L. English for plaintiff.

Chas. E. Jones, George H. Smothers and Lewis P. Hamlin for defendant.

Pee CuRiam.

This case was the subject of earnest debate on the hearing, but a careful examination of the record fails to disclose any ex-ceptive assignment of error of sufficient merit to warrant a reversal or disturbance of the judgment.

The evidence taken before the referee, and considered by the judge in ruling upon the exceptions, is not incorporated in the case on appeal, and we cannot say that there is error in the judgment. None appears on the face of the record.

Affirmed.