Tbe ruling of bis Honor on tbe motion to amend seems to bave been in tbe exercise of bis discretion, and would not be reviewable, but we concur in tbe opinion tbat if tbe amendment bad been allowed, tbe complaint as amended would not bare stated a cause of action.
Tbe facts are not clearly stated, but as tbey appear, tbe judgment of 1912 would be an estoppel, and if there was no estoppel,, tbe plaintiff could not establish a parol trust in bis own favor against tbe grantee in bis deed, under Gaylord v. Gaylord, 150 N. C., 222, and bis wife and children, alleged to be tbe other beneficiaries of tbe trust, are not parties.
Tbe exceptions to tbe form of tbe judgment are well taken. No answer has been filed by tbe defendant, and no facts are. admitted, and tbe judgment upon tbe demurrer should do no more than adjudicate tbat tbe complaint does not state a cause of action and tbat tbe plaintiff has no right to sue.
It also appears tbat tbe bond of tbe plaintiff does not purport, to cover anything except costs. .
Tbe judgment will, therefore, be modified to' tbe effect tbat tbe demurrer be sustained, tbe action be dismissed, and tbat tbe defendant recover of tbe plaintiff and bis surety bis costs.
Modified and affirmed.