#### ESTELLE COLLINS and Husband, D. G. COLLINS; MARY LAMB BRITT and Husband, J. D. BRITT; ANDREW LAMB and Wife, LILLIAN LAMB; ANNIE BELLE MARTIN and Husband, I. M. MARTIN; HILBERT LAMB and Wife, MICA GRACE LAMB; and RUBY D. KINLAW, Minob, by Her Next Friend, HILBERT LAMB (Original Parties Plaintiff); and MRS. CATTIE LAMB, Widow of E. F. (ZEBEDEE) LAMB (Additional Party Plaintiff), v. HENRY LAMB.

(Filed 31 May, 1939.)

1. Evidence § 32—

C. S., 1795, does not preclude a witness from testifying to independent facts and circumstances within her observation and knowledge or from giving evidence of what she saw or heard take place between the deceased and another or others, not involving personal transactions between herself and the deceased.

2. Appeal and Error § 38—

The burden is upon appellant not only to show error but also that the rulings complained of were prejudicial.

3. Appeal and Error § 39a—

A new trial will not be awarded for error unless the error is prejudicial and probably influenced the jury in rendering the verdict.

Barnhill, J., dissents.

Appeal by defendant from Sinclair, J., at October Term, 1938, of RobesoN. No error.

E. J. & L. J. Britt and McLean & Stacy for plaintiffs.

Varser, McIntyre & JLerwy for defendant.

Devin, J.

Tbis was an action to set aside two deeds executed by Zebedee Lamb and bis wife, Cattie 0. Lamb, to tbe defendant Henry Lamb, wbicb it is alleged were never delivered by tbe grantors. Zebedee Lamb is dead, and tbe plaintiffs and tbe defendant are bis children and beirs at law. Cattie 0. Lamb, bis widow, survives and is a party plaintiff.

Upon issues submitted tbe jury found (1) tbat tbe deeds bad been placed by tbe grantor in tbe keeping of Cattie C. Lamb under agreement tbat tbey be retained and not recorded during bis life time, and (2) tbat defendant wrongfully and against remonstrance of Cattie C. Lamb and in violation of tbe agreement obtained possession of tbe deeds and bad same recorded, and (3) tbat upon demand by tbe grantor tbe defendant refused to restore tbe deeds or reconvey tbe lands. Defendant appealed from judgment rendered in accord witb tbe verdict.

*720Appellant’s principal assignments of error relate to tbe rulings of tbe trial judge in tbe admission of evidence wbicb be contends was prohibited by C. S., 1795. Tbe restriction upon tbe admission of testimony contained in tbis section bas been recently considered by tbis Court, and numerous decisions thereunder collected and cited in Wilder v. Medlin, ante, 542, and Burton v. Styers, 210 N. C., 230, 186 S. E., 248. Tbe provisions of tbe statute are clear, but their application to particular cases frequently involves difficulty. In tbis case it appears that Cattie C. Lamb, a party plaintiff, testifying against tbe defendant, who derived bis title from Zebedee Lamb, was rendered incompetent by the statute to give evidence concerning a personal transaction or communication between herself and tbe deceased. But she was not thereby precluded from testifying to independent facts and circumstances within her observation and knowledge, or from giving evidence of what she saw or beard take place between tbe deceased and another or others wbicb did not involve a personal transaction or communication between herself and tbe deceased. She was competent to testify to transactions and communications between herself and tbe defendant wbicb did not necessarily involve matter within tbe inhibition of tbe statute. A careful examination of tbe evidence of tbis witness, to wbicb numerous exceptions were noted, leads us to tbe conclusion that while in several instances tbe trial judge permitted testimony which came within tbe prohibition of tbe statute, tbis ruling of tbe court was not sufficiently prejudicial to require a new trial. We cannot bold that tbe result was thereby affected, and tbe burden is on tbe appellant not only to show error but to enable tbe court to see that be was prejudiced or the verdict of tbe jury probably influenced thereby.

“Verdicts and judgments are not to be set aside for harmless error or for mere error and no more. To accomplish tbis result, it must be made to appear not only that the ruling complained of is erroneous, but also that it is material and prejudicial, amounting to a denial of some substantial right.” Wilson v. Lumber Co., 186 N. C., 56, 118 S. E., 797; Rogers v. Freeman, 211 N. C., 468, 190 S. E., 728; Shelly v. Grainger, 204 N. C., 488 (498), 168 S. E., 736; Harvey v. Tull, 192 N. C., 826, 135 S. E., 534; In re Ross, 182 N. C., 477, 109 S. E., 365; In re Thorp, 150 N. C., 487, 64 S. E., 379. There was ample competent evidence from tbis and other witnesses to support tbe allegations of tbe complaint and to justify tbe verdict of tbe jury. Wolfe v. Smith, ante, 286.

Other exceptions were noted by defendant to tbe ruling of tbe court below in the admission or exclusion of testimony, and to tbe form of tbe issues submitted, but upon examination we find these exceptions without *721substantial merit. Exceptions were likewise noted to the judge’s charge. Appellant complains that the trial judge did not declare and explain the law arising upon the facts in evidence, as required by O. S., 564. However, the case was one involving essentially issues of fact and these seem to have been fairly presented to the jury, with the burden of proof placed upon the plaintiffs throughout.

The record reveals the diligence of appellant’s able counsel. Nothing has been overlooked that might help his cause. But the jury has accepted the view presented by the evidence of the plaintiffs, and rendered a verdict in accord with their contentions. Upon consideration of the entire record we reach the conclusion that the judgment below should be affirmed.

No error.

Barnhill, J., dissents.