The defendant denied each and all of these allegations, and alleged that the debt was bona fide and the deed executed in good faith.
There were four issues responded to by the jury, and the verdict established: (1) That the deed was executed by Barnes with intent to cheat and defraud the plaintiff. (2) That the defendant Ricks procured the execution and registration of the deed with like intent. (3) That the defendant Ricks advanced no money to Joseph Barnes before receiving said deed. (4) Joseph Barnes had never tendered the plaintiff his debt. On the verdict there was judgment for the plaintiff, and the defendant excepted and appealed. after stating the case: The only objection to the validity of this trial, urged upon our attention by the appellant, (112) was to a certain portion of the plaintiff's testimony in which he gave a conversation between the plaintiff and Joseph Barnes, as follows: "Barnes told me that Ricks had said to him that he (Ricks) had found out the plaintiff's mortgage was not recorded, and that if Barnes would give him a mortgage he (Ricks) would cut the plaintiff out of his money." The objection being that this was a declaration of Barnes, not in the presence of Ricks and after Barnes had executed the deed of trust securing the alleged indebtedness to Ricks.
The objection is not well taken. The evidence was certainly competent against Barnes, the declarant; and, besides, no objection or exception to the testimony appears anywhere in the record or case on appeal. It was not objected to when offered; there is no motion to strike it out, and no request that the same be confined in its effect to the issue as to fraud on the part of Barnes. The objection, therefore, is not open to the defendant.Bridgers v. Bridgers, 69 N.C. 454; S. v. Ballard, 79 N.C. 627; McKinnonv. Morrison, 104 N.C. 363.
We find in the record another exception to the refusal of the Judge to dismiss the cause as on motion of nonsuit on the ground that there is no evidence to show fraud sufficient for the consideration of the jury, and this objection cannot be sustained. Without going into a detailed statement of the testimony, we are of opinion that there is evidence *Page 108 tending to show that this deed of trust was not for the real purpose of securing a bona fide debt, but that the whole transaction was a colorable arrangement to secure a feigned or pretended debt with the design and purpose to deprive the plaintiff of his security
Apart from this, the jury in response to the third issue have (113) found that Ricks advanced no money to Barnes as a consideration for the note and deed of trust. The issue is not framed with the scope or precision that is desirable, but, taken in connection with the pleadings and the testimony, the verdict on the third issue was evidently intended to mean, and by fair intendment could only mean, that Ricks was not a purchaser for value, but a volunteer. If this is true, it is not required to defeat his claim that there should have been any actual fraud on his part, and any error on that question would be harmless. Our registration act, Revisal, sec. 980, for lack of timely registration only postpones or subordinates a deed older in date to creditors and purchasers for value. As against volunteers or donees, the older deed, though not registered, will, as a rule, prevail. There is no error, and the judgment below is
Affirmed.