
    13839
    HEWLETT v. LYON & LYON, INC.
    (174 S. E., 401)
    Before Johnson, J., Allendale,
    December, 1930.
    
      Messrs. S. G. Mayfield and Brown & Bush, for appellant,
    
      
      Messrs. J. M. Patterson and Sears.on & Searson, for respondent.
    May 1, 1934.
   The opinion of the Court was delivered by

Mr. Chief Justice Beease.

This is an action for the specific performance of an alleged contract as to the purchase and sale of certain real estate. The evidence was taken by the Master and reported to the Court of Common Pleas.

On a hearing before his Honor, Circuit Judge Johnson, the judgment was in favor of the defendant, Lyon & Lyon, Inc. The Circuit Judge held that the burden rested upon the plaintiff to establish by the preponderance of the evidence the contract he depended upon, and that the plaintiff had failed so to do. He further held that the basis of the alleged contract was land and timber which had formerly belonged to the wife of the plaintiff, and not to the plaintiff; that the plaintiff himself could not have performed any contract regarding the land, and since he could not so do, in any event the defendant could not have been compelled to make performance.

In the appeal to this Court, the burden rests upon the plaintiff, who is the appellant here, to show that there was error in the findings of fact by the Circuit Judge. An examination of the evidence fails to convince us that there was such error.

We find no error of law which would require a disturbance of the decree appealed from.

It is the judgment of this Court that the decree below be affirmed.

Messrs. Justices StabeEr, Carter and Bonham, and Mr. Acting Associate Justice W. C. Cothran concur.  