As the note sued on is payable to order and not to bearer, the indorsement by Tracy was necessary to pass the title to Coleman & Son, freed of the equities and defenses of the makers against the payee, ánd without such indorsement *337tbe holders of the note were only the equitable owners, and subject to these defenses (Revisal, see. 2178; Tyson v. Joyner, 139 N. C., 72), and the jury, under proper instructions, has found in answer to the first and second issues that the indorsement was not made. Coleman & Son then became the equitable owners of the note under the findings of the jury, subject to the legal defenses of the defendants against Tracy, and as they could not sell more than they owned, the plaintiff took the note by purchase from Coleman & Son with the same infirmity attached.
It follows, therefore, that the prayers for instruction requested by the plaintiff were properly refused, as they were predicated upon the idea that the plaintiff was a holder in due course and was the owner of the legal and equitable title.
In this view of the case, it is not necessary to consider the first four exceptions to evidence, as they all bear on the question of good faith on the part of the plaintiff, and its notice of fraud, which was immaterial if the plaintiff was only, the equitable owner.
It also appears that his Honor charged the jury that the plaintiff had no actual notice of any fraud.
The letter offered in evidence was properly excluded, as the declaration of a stranger and hearsay, but if admitted, it could have had no bearing on the case except to show good faith on the part of Coleman & Son in the purchase of the note, and good faith could have added nothing to their title if there was no indorsement.
There are many other exceptions in the record, most of them being directed to the evidence to prove false and fraudulent representations.
We have examined all of them, and find nothing that will justify a reversal of the judgment.
The evidence of fraud is stronger than in many of the actions on so-called “horse notes” that have been before us.
No error.