It was conceded upon the argument, and properly so, that the instructions to the jury are correct if there is no error in the admission of evidence, and upon a careful consideration of the record we find none.
It is true, as contended by the defendant, that a deed only takes effect from delivery, but it was competent for the plaintiff to introduce in evidence its deed purporting to convey the timber in controversy to the defendant for the purpose of showing that it was ready and willing to perform its part of the contract.
The plaintiff claimed title in part under a proceeding for the sale of lands to which Jesse F. Wilson was a party, and on the morning of the trial of this action Jesse F. Wilson filed in the clerk's office a petition which was not served, seeking to set aside the proceeding upon the ground that he had been made a party thereto without authority, and this was relied on by the defendant as evidence of a defect in the title of the plaintiff.
It then became competent for the plaintiff to introduce Messrs. Grady and Faison and to prove by them that Jesse F. Wilson authorized his joinder as a party to the proceeding; that he was present when the petition was prepared and knew its contents.
The exceptions of the defendant to the refusal of the court to permit a witness to answer certain questions as to damage to the timber by fire and otherwise since the execution of the contract are without merit.
In the first place, there is nothing in the record to indicate what would have been the answers to the questions. (Lumber (457)Co. v. Childerhose, 167 N.C. 34), and again, it does not appear that if there was a depreciation in value, it occurred prior to the time the plaintiff tendered its deed to the defendant.
There was ample evidence to support the findings of the jury, and the motion for judgment of nonsuit was properly denied.
No error. *Page 538