
    VIRGINIA TRUST COMPANY, Trustee, v. E. R. MERRICK, Trustee, and THE NORTH CAROLINA MUTUAL LIFE INSURANCE COMPANY OF DURHAM, N. C.
    (Filed 28 April, 1937.)
    Appeal and Error § 38—
    Where the Supreme Court is evenly divided in opinion, one Justice not sitting, the judgment of the lower court will.be affirmed, without becoming a precedent.
    Appeal by plaintiff from Harris, J., at March Term, 1937, of Wake.
    Affirmed.
    This was an action by plaintiff, a creditor of the estate of Berry O’Kelly, deceased, to enjoin sale of land under deed of trust executed by the administrator of said estate to the defendant Merrick, trustee for the North Carolina Mutual Life Insurance Company, another creditor of said estate. The execution of the deed of trust by the administrator was authorized pursuant to the provisions of C. S., 75, as amended by chapter 222 of the Public Laws of 1927.
    From judgment dismissing the action, plaintiff appealed.
    
      Shepherd & Shepherd and N. G. Fonville for plaintiff.
    
    
      Clem B. Holding and Bryant ■& Jones for defendants.
    
   Per Curiam.

One member of the Court, Schenck, J., being absent, and the remaining four being equally divided in opinion as to whether the statute permitting an administrator to execute a deed of trust on real estate is applicable to the facts in this case, the judgment of the Superior Court, in accord with the usual practice in such cases, is affirmed and stands as the decision of this case, without becoming a precedent. Caffey v. Osborne, 210 N. C., 252.

Affirmed.  