
    A. D. BYRD v. GEORGIA HICKS et al.
    (Filed 10 October, 1923.)
    1. Parties — New Parties — Failure to Answer — Verdict—Judgments.
    Where a new party has been suggested to make a complete and final conclusion of tbe matters at issue, and tbe party bas been duly served with summons and fails to plead or appear in bis own interests, it becomes immaterial as to whether tbe verdict rendered is sufficient to disprove bis rights.
    2. Instructions — Conflicting—Appeal and Error — New Trials.
    An instruction upon tbe evidence that is conflicting upon material points is held to be reversible error.
    8. Same.
    The' mortgagee resisting tbe foreclosure of tbe mortgage, pleaded and introduced evidence to show that tbe mortgagor had agreed to cancel several notes thereby secured upon being repossessed and seized of tbe lands; and there was further evidence that a new party, made to the proceedings, had been duly served with summons and had failed to plead or appear at the trial: Held, an instruction to find for defendant upon his reconveying the lands, and an instruction requiring him upon appropriate findings of the jury to pay off the note he had acquired from the plaintiff, are conflicting upon a'material matter, upon which a new trial will be ordered on appeal.
    Appeal by plaintiff from Calvert, J., at March Term, 1923, of DupliN.
    Civil action tried upon tbe following issues:
    “1. Was there an agreement between tbe plaintiff, A. D. Byrd, and tbe defendant, Miss Georgie Hicks, under which said defendant would resume tbe ownership of tbe land described in tbe deed of trust to I. R. Williams in full satisfaction' and discharge of tbe plaintiff’s indebtedness to said Miss Hicks secured by said deed of trust? Answer: ‘Yes.’
    “2. If so, is tbe defendant S. T. Hooker tbe owner of a one-half interest in tbe note referred to in tbe pleadings, and was be, prior to 28 October, 1921, and if so, bow much is due said Hooker thereon? Answer: ‘Yes, $1,032.84, with interest from 18 December, 1920.’
    
      “3. In what amount is the plaintiff indebted to Miss Georgie Hicks? Answer: ‘.’
    “4. What amount is in the hands of the receiver ? Answer: ‘$263.99.’ ”
    Judgment against the plaintiff that he reconvey the lands in question to Miss Hicks in discharge of the notes held by her, and that S. T. Hooker be allowed to recover of plaintiff the value of the note held by him.
    Plaintiff appealed, assigning errors.
    
      H. D. Williams and B. D. J ohnson for plaintiff.
    
    
      Bobinson & Bobinson and Stevens, Beasley & Stevens for defendant.
    
   Stacy, J.

This case was before us at the Fall Term, 1922, and is reported in 184 N. C., 628, where the facts are stated in the opinion and need not be repeated here. We suggested then that S. T. Hooker ought to be brought in and made a party, to the end that all the rights and interests involved in this controversy might be fully determined in one proceeding. Summons was duly issued and served on the said S. T. Hooker, but he has filed no pleading herein and he has not appealed from the verdict and judgment rendered. It is unnecessary, therefore, for us to consider, as was urged on the argument, whether the verdict as rendered is sufficient to dispose of his rights. He seems to be content. But after a very careful and critical examination of the record, we are persuaded that a new trial must be granted for error in the charge, which, we think, is prejudicial to the plaintiff. On the first issue his Honor instructed the jury as follows:

“If you find from the evidence, and by the greater weight of it, that there was an agreement between the plaintiff, Byrd, and the defendant, Miss Hicks, under which said defendant would resume the ownership of the lands described in the deed of trust, in full satisfaction and discharge of said indebtedness secured by said deed of trust, you should answer the issue ‘Yes.’ Unless you are so satisfied, you should answer it ‘No.’ ”

Here it will be observed the “indebtedness secured by said deed of trust” covered all the notes, including those — six in number- — held by Miss Hicks and the one held by S. T. Hooker. According to plaintiff’s allegation, it was the understanding that all the notes were to be discharged upon a reconveyance of the lands, and this included the note held by Hooker, as well as those held by Miss Hicks. But, on the verdict, plaintiff is required to surrender the several tracts of land and deed them back to Miss Hicks, and also to pay the balance due on the note held by S. T. Hooker. The second issue was answered in accordance with the court’s direction, to which .the plaintiff excepted. This instruction appears to be in direct conflict witb tbe previous charge on tbe first issue; and it is well settled that a new trial must be awarded where there are conflicting instructions in the charge with respect to a material matter. S. v. Falkner, 182 N. C., p. 799, and cases there cited.

True, the first issue, in terms, purports to deal only with the “plaintiff’s indebtedness to Miss Hicks,” but the note now held by Hooker was originally a part of this indebtedness — evidently so understood by the jury — and it is the accepted position with us, under our liberal system of procedure, that a verdict should be interpreted and allowed significance by proper reference to the pleadings, the evidence, and the charge of the court. Holmes v. R. R., 186 N. C., p. 61. Tested by this rule, we think the first and second issues are in conflict.

Venire de novo.  