#### ATLANTIC JOINT STOCK LAND BANK OF RALEIGH v. ZEB V. FISHER and His Wife, MARY M. FISHER, et al.

(Filed 11 April, 1934.)

Reference J> b — Where issues tendered do not arise upon exceptions to referee’s report refusal of trial by jury is not error.

Where a case is one properly subject to a compulsory reference, C. S., 573, a party excepting to the order of reference is not entitled to have issues tendered upon the hearing of exceptions to the referee’s report submitted to the jury when the issues do not arise upon the exceptions.

Appeal by defendants Zeb Y. Fisher and his wife, Mary M. Fisher, from Oglesby, J., at October Term, 1933, of Rowan.

Affirmed.

This is an action to foreclose a mortgage executed by the defendants, Zeb Y. Fisher and his wife, Mary M. Fisher, to secure their note payable to the plaintiff for the sum of $15,000. It is alleged in the complaint that by reason of the default of the defendants in the payment of taxes levied on the lands described in the mortgage for the year 1931, and of the semiannual installment due on 1 June, 1932, there is now due on said note the sum of $13,243.92, with interest on said sum from 1 December, 1931, subject to a credit of $6,000 paid by the defendants on 6 January, 1932, by the sale of one of the tracts of land described in the mortgage. The defendants admitted the execution of the mortgage, but denied that the note secured thereby was due at the date of the commencement of the action. They alleged that it was agreed by and between the plaintiff and the defendants that the sum of $6,000 paid by the defendants on said note on 6 January, 1932, should be applied to the payment of the successive semiannual installments becoming due next thereafter, and that by reason of such agreement the installment due on 1 June, 1932, had been paid. This allegation was denied by the plaintiff. The action was begun on 13 July, 1932.

The action was heard on exceptions to the findings of fact and conclusions of law of the referee to whom it was referred for trial. The defendants having in apt time excepted to the order of reference, demanded a trial by jury of the issues raised by the pleadings, and ex*413cepted to tbe refusal of tbe judge to submit such issues to a jury. Tbe exceptions were beard and considered by tbe judge. They were overruled by brm.

It was thereupon ordered and adjudged, in accordance with tbe report of tbe referee, that plaintiff recover of tbe defendants Zeb Y. Fisber and bis wife, Mary M. Eisber, tbe sum of $13,243.92, with interest on said sum from 1 December, 1931, less tbe sum of $6,000, with interest from 6 January, 1932, and tbe costs of tbe action. It was further ordered and decreed that tbe land described in tbe complaint be sold by a commissioner appointed by tbe court for that purpose, and that upon tbe confirmation by tbe court of such sale, tbe proceeds be applied first to tbe payment of tbe judgment in this action, and then in accordance with tbe decree. Tbe defendants excepted to tbe judgment and appealed to tbe Supreme Court.

J. L. Coclcerham, Hudson & Hudson and McLean & Stacy for plaintiff.

B. Lee 'Wright, and T. C. Bowie for defendants.

Per Curiam.

Although tbe defendant Zeb Y. Eisber, in bis answer prayed that “this clause be referred to a referee to take and state an account between tbe plaintiff and tbe defendants, and report same to tbe court as provided by law,” tbe said defendant joined with bis co-defendant, Mary M. Eisber, in an exception to tbe order of reference. It is not contended by either of said defendants in this appeal that there was error in tbe order of reference, for tbe reason that this is not a proper case for a compulsory reference, C. S., 573. Tbe exception to tbe order of reference was apparently for tbe sole purpose of preserving tbe right of tbe defendants to a trial by jury of tbe issues arising on tbe pleadings. Tbeir only contention on this appeal is tbat there was error in tbe refusal of tbe judge to submit tbe issues appearing in tbe record to a jury. These issues, however, do not arise in tbe defendants’ exceptions to tbe report of tbe referee. For tbat reason, there was no error in tbe refusal of tbe judge to submit tbe issues tendered to a jury. By tbeir failure to tender appropriate issues arising on tbeir exceptions, tbe defendants waived tbeir right to a trial by jury. See Booker v. Highlands, 198 N. C., 282, 151 S. E., 635.

Tbe judgment is supported by tbe findings of fact made by tbe referee, and approved by tbe judge. For tbat reason, tbe judgment is

Affirmed.