
    WRIGHT GROSS v. T. C. McBRAYER.
    (Filed 15 May, 1912.)
    1. Issues Sufficient — Appeal and Error.
    Issues-are sufficient when they embrace all matters in dispute and afford an opportunity for the parties to present and develop their contentions, and, when answered, are sufficient to determine the rights of the litigants and to support the judgment.
    2. Judgments — Execution Sales — Fraud—Burden of Proof.
    In an action to set aside a judgment and sale for fraud in procuring title to lands, the burden is upon the plaintiff to establish the fraud complained of by the greater weight of the evidence.
    3. judgments — Execution Sales — Lands—Remote Values — Evidence —Harmless Error.
    In an action to set aside a judgment and sale for fraud in pro- • curing title to lands, a plaihtiff’s evidence offered to show their value many years1 before the sale complained of was too remote, and inadmissible. There was barely sufficient evidence of fraud to be submitted to the jury, but the plaintiff cannot be heard to complain that the- jury were permitted to consider it.
    Appeal by plaintiff from Long, J., at August Term, 1911, of RUTIIEREORD'.
    Tbe facts are sufficiently stated in the opinion of the Court, by Mr. Justice Walker.
    
    
      D. F. Morrow and Quinn & Hamrick for plaintiff.
    
    
      McBrayer, McBrayer & McRorie and Murray Allen for defendant.
    
   Walker, J.

This action was brought to impeach the sale of land unde;* a decree for a foreclosure. The plaintiff, in one section of Ms complaint, seeks to recover $1,000 as damages resulting from a fraudulent sale of tbe land, and, in the prayer, he demands judgment that defendant be declared a trustee for him, that he be required to account to him for rents and profits received, and that, a sale of the land be ordered and the proceeds applied according to the rights of the parties. In the one view there would be a ratification of the sale and an election to recover damages for the fraud, and in the other there would be a repudiation of the sale. But we do not consider it material which view we take of the action. The following appear to be the facts: On 12 November, 1893, Sherman Gross gave his note to the defendant for $350, and to secure the same he, at the same time, executed a mortgage upon 52 acres of land. Sherman Gross died in June, 1897, leaving his widow, Eliza Jane Gross, and an infant son, Wright. Gross, who is plaintiff in this case. The mortgagee commenced a suit on 27 October, 1898, for a foreclosure of the mortgage, alleging that there was due, at that time, on the debt, the sum of $312.40. Summons was duly served upon the widow and on Wright Gross, the minor, and a guardian ad litem, R. W. Logan, was duly appointed for the minor, who was under fourteen years of age. The -\yidow filed an answer and the guardian was notified to file his answer. There appears on the back of the widow’s answer the following: “Answer of guardian filed 31 December, 1898.” The administrator was a party to the suit and served with process. A judgment was rendered for the debt and a sale of the land, which was afterwards sold by the commissioner and bought by the mortgagee, who is the defendant in this case. The sale was duly reported and confirmed by the court, and a deed made to the purchaser, who has since sold the land to other parties. It is not very clear, from a reading of the complaint, what is the particular fraud alleged, against the defendant, but we gather that he prosecuted the foreclosure suit to judgment and bid it off at the sale, when he knew that plaintiff, Wright Gross, was a minor and under “a pretended appointment of a guardian ad litem for him, and without any answer having been filed by him, as plaintiff is informed and believes, be did not have bis day in court.” Tbe court submitted two issues to tbe jury, wliicb, witb tbe answers thereto, are as follows:

1. Did tbe defendant witb intent to cheat and defraud tbe plaintiff, under a pretended mortgage and judgment, have tbe land bid in at the sale for himself, as alleged in tbe complaint? Answer: No.

2. Did tbe defendant procure judgment for sale of tbe lands by securing a pretended appointment of a guardian act litem for tbe plaintiff, as alleged? Answer: No.

Plaintiff objected to these issues, but tendered no issues himself. It seems to us that tbe issues submitted by the court were those made by tbe pleadings, and if tbe plaintiff desired any other issue, be should have tendered it. When issues embrace tbe real matters in dispute and afford an opportunity for the parties to present and develop their contentions, and, when answered,' are sufficient to determine tbe rights of tbe litigants and to support, tbe judgment, they are sufficient within tbe requirement of tbe statute. Clark v. Guano Co., 144 N. C., 64; Shoe Co. v. Hughes, 122 N. C., 296; Hatcher v. Dabbs, 133 N. C., 239 (Anno. Ed.) and notes. This exception is, therefore, overruled.

There was evidence which, if believed, was sufficient to support tbe. verdict, and it was submitted to tbe jury under proper instructions from the court. Tbe plaintiff excejffed to an instruction of tbe court, by which tbe jury were told that tbe plaintiff must establish the affirmative of tbe issues b.y tbe greater weight of the evidence, but this is not unfavorable to tbe plaintiff, and be has no reason to complain of it. This is an action to set aside the judgment and the sale for fraud in procuring title. Tbe plaintiff was required to take tbe laboring oar and tbe burden rested upon him to make good bis allegation of fraud.

There was evidence that tbe land brought its full value at the sale, and that which the plaintiff offered, to show its value, not at tbe time of the sale, but many years before, was too remote to have any bearing upon tbe question. Tbe court allowed tbe plaintiff much latitude in bis attempt to show tbe value of the land at the time of the sale, as a circumstance involved in the issue of fraud. It may well be doubted if the plaintiff offered any evidence of fraud sufficient for the consideration of the jury, but he cannot complain, as the court permitted the jury to hear what evidence there was and to pass upon the issue of fraud. The charge was very fair and liberal to the plaintiff, and an adverse verdict has been the result upon what was substantially a mere question of fact.

~We find no error in the case.

No error.  