judges is calculated sometimes, especially in this class of cases, to work great injustice to one and sometimes to both parties; and the defendant has earnestly contended that such practice should not be allowed, and that we should not follow Benton v. Collins, 125 N. C. 83, 34 S. E. 242, 47 L. R. A. 33, and similar cases, so far as they authorize such practice in the superior courts. As we have awarded a new trial generally, it is not necessary now to determine that question, and we will leave it open for future consideration, should it be presented again. We will, however, caution the judges of the superior courts in respect to such practice, and invite their attention to what is said in Benton v. Collins, at page 91 of 125 N. C., at page 243 of 34 S. E. (47 L. R. A. 33): "Before such partial new trials, however, are granted, It should clearly appear that the matter involved is entirely distinct and separable from the matters involved in the other issues, and that the new trial can be had without danger of complications with other matters." And we will add, that before such partial new trial is ordered it should clearly appear that no possible injustice can be done to elther party. In cases of this character we do not know that the practice is generally to be commended. In the case at bar an examination of all the evidence relating to the injury and its cause and the conduct of the plaintiff, as well as of defendant's agents, might show that it is so interwoven with that relating to damage that to fairly ascertain what is a just compensation the plaintiff should receive, if he is entitled to recover at all, can best be determined by trying the whole case before one judge and one jury, instead of "splitting it up" between different judges and different juries. New trial. (144 N. C. 291) CARPENTER v. DUKE et al. (Supreme Court of North Carolina. April 9, 1907.) MORTGAGES-FORECLOSURE - SURPLUS PROCEEDS DISPOSAL. The purchaser of a farm paid a portion of the price in cash, secured another portion by a deed of trust on the farm, duly recorded, and for the remaining portion gave a bond, reciting that it was given for the balance of the price. The bond was duly recorded. Thereafter the purchaser gave another deed of trust on the same land to secure an indebtedness, which was recorded. The land was sold under the first deed of trust, and the indebtedness which it secured paid, leaving a balance. Held, that the bond gave no equity in or other right to the land itself, and did not take precedence over the second deed of trust: hence the balance of the proceeds of sale should first be applied in satisfaction of the indebtedness secured by the second deed of trust. Appeal from Superior Court, Durham County; Justice, Judge. Controversy without action between A. M. Carpenter and B. L. Duke and others. From a finding in favor of plaintiff, defendants appeal. Reversed. This is a controversy without action, submitted to the court for decision upon the following agreed statement of facts: The plaintiff, Carpenter, on April 27, 1906, sold his farm to defendant Edwards for $3,500, of which amount said Edwards paid $800 cash and executed a deed in trust to H. A. Foushee to secure the sum of $2,400. For the balance of $300 Edwards executed his bond under seal in the following words and figures, to wit: "$300.00. Durham, N. C., April 27th, 1906. On or before November 6th, 1906, with interest from May 1st, 1906, I promise to pay to the order of A. M. Carpenter three hundred dollars for balance of purchase money of the tract of land this day purchased by me of him, containing 95 acres, less 3.58 A. See deed from J. W. Barbee and wife in Deed Book 23, page 271, for description of same. C. M. Edwards. [Seal.] Witness: J. E. Owens." Said instrument was on April 30, 1906, probated and recorded in the office of the register of deeds of Durham county. The tract of land conveyed by Carpenter to Edwards is accurately described in the deed recorded in the office of said register of deeds. On June 14, 1906, said Edwards, being indebted to B. L. Duke in the sum of $1,786.12, executed to him a deed in trust for the purpose of securing the payment thereof, conveying the same tract of land described in the deed from Carpenter to him. Said deed in trust was duly recorded in the office of the register of deeds of Durham county. Thereafter the said H. A. Foushee, trustee, pursuant to the power conferred upon him by the aforesaid deed, sold the said land for the sum of $3,250, and, after paying the debt of $2,400 secured thereby, has in his hands, or to his credit in bank, from the proceeds of said sale, $647.03, which he is ready to pay to the parties who may be adjudged entitled thereto. The whole amount of the note of $300 is due and unpaid, and no part of the debt to B. L. Duke, secured in the deed in trust to him, has been paid. Plaintiff claims that he is entitled to be paid, out of the amount in the hands of Mr. Foushee, the amount due on his note, while defendants Duke and his trustee, J. A. Giles, claim said sum by virtue of the deed in trust of June 14, 1906. His honor adjudged that defendant Foushee pay the plaintiff the note of $300, with interest, and the balance to J. A. Giles, trustee. Defendants Duke and Giles, trustee, appealed. Giles & Sykes, for appellants. Winston & Bryant, for appellee. CONNOR, J. (after stating the case). Plaintiff's counsel, in a well-considered and interesting argument before us, conceded that the equitable vendor's lien which prevails in England, unless changed by statute, and in several of the states of the Union, does not obtain in this state. Womble v. Battle, 38 N. C. 182. He contends, however, that the judgment rendered by his honor is correct, “first, because Duke, so far as this transaction is concerned, stands in the shoes of the vendee, Edwards, and takes subject to any equity or other right of the vendor in the land." We concur with the learned counsel that this court has uniformly held, since the decision of Potts v. Blackwell, 56 N. C. 449, and 57 N. C. 58, that a grantee in a deed in trust made to secure an existing debt is a purchaser for a valuable consideration within the provisions of the statutes of 13 and 27 of Eliz. (sections 960 and 961, Revisal 1905), but takes title subject to any equity or other right that attached to the property in the hands of the debtor. It will be noted that in the opinion of Pearson, J., in Potts v. Blackwell, 56 N. C. 449, the words "or other rights" are not found, nor do they appear in the opinions in Small v. Small, 74 N. C. 16, Day v. Day, 84 N. C. 408, Brem v. Lockhart, 93 N. C. 191, or Southerland v. Fremont, 107 N. C. 565, 12 S. E. 237. These last-named cases quote the exact language used in Potts v. Blackwell, supra. Our attention is directed to the language of Shepherd, J., in Wallace v. Cohen, 111 N. C. 103, 107, 15 S. E. 893: "That such purchaser takes the property subject to any equity or other right that attached to the same in the hands of the debtor." It will be noted that in the case cited the learned justice was discussing the question upon the facts appearing in the record. The plaintiffs, vendors of personal property, were asserting the legal right to rescind the sale by reason of fraud practiced upon them by the vendee in procuring the property. They were resisted by the assignee or trustee of the fraudulent vendee. The right to recover the property was not dependent upon the establishment of any equity, or equitable lien, but upon a well-defined legal right to treat the sale as void and sue in a possessory action for the property, as the plaintiffs, upon the theory that by reason of the fraud no title passed. Wilson v. White, 80 N. C. 281; Des Farges v. Pugh, 93 N. C. 35, 53 Am. Rep. 446. In view of the facts before him, the learned and accurate justice correctly used the words "equity or other right." See, also, Walton v. Davis, 114 N. C. 104, 19 S. E. 159. In Brem v. Lockhart, supra, the controversy was between the vendor in an unregistered, conditional sale and the assignee. In neither of these cases was there an assertion of any "equity," as that term is understood in equity jurisprudence. We do not perceive, however, that the plaintiff takes any benefit from enlarging the scope of the language used in Potts v. Blackwell, supra. Whether the vendor asserts an equity or right, such equity or right, to avail him as against the trustee or creditor secured, must "attach to the property in the hands of the debtor." It must be a right, either legal or equitable, to subject the property, as distinguished from a mere right in personam to reach the property through the process of a judgment and execution. In the view which we take of the record, the plaintiff has no equity in, or other right to, the land. Assuming, as contended by counsel, that judgment be rendered in this controversy against Edwards on the note, we fail to see how he would have any other remedy than a right to enforce a judgment lien then attaching to the fund, which for this purpose stands in the place of the land. Of course, such lien would be subject to the right which Duke acquired by the trust deed, because, as said by Ashe, J., in Dail v. Freeman, 92 N. C. 356, “a judgment lien on land constitutes no property or right in the land itself. A judgment creditor has no jus in re nor jus ad rem in the defendant's land, but a mere right to make his general lien effectual by following up the steps of the law and consummating his judgment by an execution and sale of the land." We do not, therefore, perceive how, for the purpose of disposing of this controversy, rendering a judgment herein against Edwards on the note would avail the plaintiff. Counsel cite Blevins v. Barker, 75 N. C. 436, as sustaining his contention. There the note given for the purchase money contained the words: "The land I have sold to W. E. Senter is bound for this note." The court said that, if the note had been registered "at the same time with and as a part of the deed," such a construction might have been given to the whole transaction; that is, that the words used in the note would have been construed as an agreement to attach to the legal title a trust for the payment of the note, which, between the parties, would have been effectuated in equity by treating the deed and the note as one paper, thereby giving effect to the intention of the parties, and that, as against a purchaser at execution sale, as in that case, or the grantee in a trust deed, would be binding as an equity attaching to the legal title. This, when registered, would have been equally effective against any purchaser for value, upon the familiar principle that who takes with notice of an equity takes subject to such equity. While the courts, to effectuate the intention of the parties and protect rights, have given a liberal construction to language indicating an intention to make property security for the payment of the purchase money, sometimes called "equitable mortgages," we find no case in which the mere recital of the fact that the consideration of the note was the purchase money of the property is given such effect." Am. & Eng. Enc. 123. To give the language used here such effect would be to do violence to the evident intention of the parties, because the vendee, at the time of his purchase, executed a mortgage or trust deed to Mr. Foushee for $2,400 of the deferred payment of the purchase money, and manifestly, for some reason not appearing, the vendor was willing to take chances on the balance of $300. The evident purpose of reciting the consideration was to fix the fact that the ven dee was not entitled to claim a homestead as against the note. Const. art. 10; Revisal 1905, § 468. We conclude, therefore, that the plaintiff has no equity in or right to the land which can be asserted either against the vendee, Edwards, or his grantee, Duke, or his as signee, Giles. The interesting discussion, therefore, of plaintiff's counsel in regard to conflicting equities and their priorities, growing out of the fact that Edwards transferred to Duke only an equitable title, the legal title being in Foushee, cannot avail the plaintiff, because he has no equities or rights to be adjusted. Much of the learning in this branch of equity jurisprudence has become of little practical value because of our registration laws. A mortgage of an equitable interest, right, or title, when recorded, is entitled to the same priority as a legal title. In the view which we have taken of the case, the registration of the note did not affect the rights of the parties. There was no contract to convey land entitled to registration. Judges have frequently expressed a regret that the vendor of land, who has, under a misapprehension of his rights, been unable to collect the purchase money, especially when creditors whose debts pre-existed the acquisition of the title by the debtor have taken precedence; but, as said by Ruffin, C. J., in Womble v. Battle, supra, the doctrine of the vendor's lien was unsuited to conditions in this state and produced much litigation and uncertainty. A sound public policy, adopted by the Legislature and enforced by the courts, demands that, for certainty of title and easy alienation of property, secret trusts, obscure equities, and uncertain liens shall not prevail against titles acquired by deeds and perfected by public registration. For the reasons set forth, we hold that there is error in the judgment. The defendant Duke is entitled to the amount in the hands of Foushee, trustee, less the cost of this controversy, which he will pay out of the fund. Reversed. (144 N. C. 297) DAVIS v. SMITH. (Supreme Court of North Carolina. April 9, 1907.) 1. ADJOINING LANDOWNERS - DISCHARGE OF WATER UPON NEIGHBOR'S PROPERTY. Where defendant was sued for damage to plaintiff's building by water falling from defendant's roof, it was no defense that, if the building had been better constructed, the damage would have been less. 2. JUDGMENT-CONFORMITY TO PRAYER, In a suit for damages for the discharge of water upon plaintiff's property from defendant's roof, judgment for plaintiff properly ordered defendant to provide gutters or drains to prevent water from flowing from the roof against plaintiff's building and lot; the order being conformable to the issues found and prayer. Appeal from Superior Court, Durham County: Moore, Judge. Action by Lelia R. Davis against John W. Smith. The Supreme Court reversed a judgment for defendant (53 S. E. 745), and, from a judgment for plaintiff on retrial, defendant appeals. No error. Giles & Sykes, for appellant. Manning & Foushee, for appellee. PER CURIAM. The questions which were presented on the former appeal (141 N. C. 108, 53 S. E. 745) need not again be considered. There was evidence in support of the plaintiff's contentions, and the rulings and instructions of the trial court conformed to what was said by us on the former hearing. The plaintiff is not complaining of the diversion of surface water, and his honor confined the jury to the damage done the plaintiff's wall by water falling from the defendant's roof. Davis v. Tower Co., 171 N. Y. 336, 64 N. E. 4, 57 L. R. A. 545, 89 Am. St. Rep. 817. If the defendant caused or permitted this, it was not competent to show that, if the plaintiff's building had been better constructed, the damage would have been lessened. Fitzpatrick v. Welch, 48 L. R. A. 278, 174 Mass. 486, 55 N. E. 178; Gould v. McKenna, 86 Pa. 297, 27 Am. Rep. 705. The other exceptions of the defendant do not require discussion. The Judgment contains, besides the adjudication for the recovery of the damages assessed, a mandate that the defendant shall "provide sufficient gutters or pipes or drains for his large building on his said lot, adjoining the plaintiff's, to prevent the water falling from the roof thereof from flowing against the plaintiff's building and lot." This was a proper order upon the allegations and issues found, and was prayed for in the complaint. If it had not been specifically prayed for, the judgment should contain any appropriate relief justified by the allegations of the complaint and the verdict. Williams v. Commissioners, 132 N. C. 301, 43 S. E. 896; Reade v. Street, 122 N. C 302, 30 S. E. 124, and cases cited. No error. (144 N. C. 303) TOWN OF LUMBERTON v. JOHN NUVEEN & CO. (Supreme Court of North Carolina. April 9, 1907.) - 1. MUNICIPAL CORPORATIONS ISSUANCE OF BONDS-ELECTIONS-NOTICES-STATUTES. A notice of an election in a municipality to determine the question of the issuance of bonds, which recites that the rate of interest on the bonds, if issued, shall not exceed 6 per cent., sufficiently sets forth the rate of interest the bonds will bear, within Priv. Acts 1905, p. 861, c. 334, providing that the notice shall recite that the bonds, if issued, shall bear interest at a rate not exceeding 6 per cent. 2. SAME. A notice of an election in a municipality to determine the question of the issuance of bonds, which provides that the time of the maturity of the bonds, if issued, shall not exceed 30 years, and that the bonds shall be redeemable at the option of the municipality at the end of 20 years, is sufficient, within the express provisions of Priv. Acts 1905, p. 864, c. 334, authorizing the municipality to issue bonds. 3. SAME-VALIDITY OF BONDS. The validity of bonds issued by a municipality, as provided by Priv. Acts 1905, p. 864, c. 334, is unaffected by the fact that the rate of taxation levied by the commissioners of the municipality will be insufficient to pay the annual interest and to provide a sinking fund; for the commissioners, under the express provisions of the act, may be compelled to levy an additional tax in case of a deficiency, subject to the limitations contained therein. 4. SAME. Under Priv. Acts 1905, p. 864, c. 334, authorizing a municipality to issue bonds for waterworks and a sewerage system, and providing that the question of the issuance of such bonds "may" be voted on in separate ballot boxes, the questions of the issuance of waterworks and sewerage bonds may be voted on in one box. Appeal from Superior Court, Robeson County; Webb, Judge. Controversy without action between the town of Lumberton and John Nuveen & Co. From a judgment for the former, the latter appeal. Affirmed. McLean, McLean & McCormick, for appellants. McIntyre & Lawrence, for appellee. BROWN, J. This proceeding is brought to determine the legality of an issue of bonds to the amount of $25,000, issued by the town of Lumberton, N. C., and which the defendants contracted to purchase. The defendants contest the validity of the bond issue upon the following grounds, as appears from briefs of counsel for both parties to the controversy: (1) For that the petition and notice of election do not set forth with certainty the rate of interest or the time of maturity, as is provided by sections 1 and 2, c. 334, p. 864, Priv. Acts 1905, under which the bonds have been issued. (2) For that the rate of tax to be levied and collected to pay interest and to provide a sinking fund for the redemption of the bonds at maturity, as set forth in the petition and notice of election, and as levied by the board of commissioners of the town, is insufficient; not enough funds being provided wherewith to pay interest and principal at maturity. (3) For that waterworks and sewerage are two distinct and separate objects, and bonds for the extension of waterworks and sewarage could not be voted upon on one form of ballot and in one ballot box, as was done, where the act provides that each object must be voted for separately upon different ballots and in different boxes. As to the first objection, we find that the notice required by the act of 1905, referred to, contains these words: "The said bonds, if issued, to bear interest at a rate not exceeding 6 per cent. per annum, payable annually." A majority of the qualified voters under the terms of said act, enacted in strict conformity to the Constitution, authorized the issue of the bonds upon a 6 per cent. interest basis. The commissioners are vested with full pow er to fix the rate of interest, provided it does not exceed 6 per cent. This is not only true under the terms of the notice, but section 1 of the act expressly confers such discretion. The record shows that the bonds are to bear interest at 51⁄2 per cent. As to the time of maturity, both the notice and the act authorize the issue of bonds maturing at a date not longer than 30 years and redeemable at the option of the town at the end of 20 years. The language of section 1 of the act gives to the commissioners a discretion as to the time of payment, subject to the 30-year limit. Bank v. Ayer, 24 Ind. App. 212, 56 N. E. 267; Catron v. County, 106 Mo. 659, 17 S. W. 577; Baker v. Seattle, 2 Wash. 578, 27 Pac. 462; Turpin v. County, 48 S. W. 1085, 105 Ky. 226; Cullen v. Water Co., 113 Cal. 503, 39 Pac. 769, 45 Pac. 822, 1047; Mfg. Co. v. Elizabeth, 42 N. J. Law, 249. It is contended that the rate of taxation levied by the plaintiff's commissioners in their order will be insufficient to pay the annual interest and to provide a sinking fund. This cannot invalidate the legality of the bond issue. The act provides that the commissioners shall levy a special tax sufficient to provide for the interest and sinking fund, and, if the tax levied during any one year should prove to be insufficient, they can be compelled to levy an additional tax, subject, of course, to the limitations contained in the proviso to section 4 (page 865) of the act. The defendants are, of course, held to have knowledge of the terms of the act when they contracted to purchase bonds issued under its authority. It appears that the rate levied is not up to the limit yet, and we are led to believe that there is a probability that in the future it may be safely lowered, judging from the glowing terms in which the learned counsel for the plaintiff, in their brief, refer to their prosperous town, viz.: "The court will take judicial notice of the fact that our towns and cities are growing rapidly, especially the town of Lumberton, that great center of trade and industry." We cannot take judicial notice that Lumberton is "that great center of trade and industry" to the extent of basing our judgment as to the sufficiency of the tax levy upon what the future may hold in store for its thrifty population. What we do hold is that if it is insufficient the bondholder can compel an increased levy, within the terms and limitations of the act. It is also contended that the propositions relating to waterworks and sewerage should have been voted on in separate boxes in order to comply with the terms of the act. We do not deem it necessary to determine the question, so elaborately presented in the briefs, as to whether waterworks and sewerage are one and the same thing, as understood in the town of Lumberton, or are two distinct objects and kinds of municipal improvement. We hold that the language of the act is not mandatory, and whether one or two boxes were used is immaterial, so far as it affects the validity of the bonds. The words "may be voted on in separate boxes" are shown by the context to leave the manner of voting to the sound discretion of the commissioners. The qualifying words, "but in such case," immediately following, indicate plainly that the propositions could be voted on in one box; but, in case two boxes were used, certain requirements are made as to ballots. In fact, the whole of section 2 plainly imports that it was within the discretion of the commissioners to provide only ne box for the vote upon water and sewerage. Upon a review of the whole record, we are of opinion that the bonds constitute a valid obligation of the town of Lumberton, and that under the terms of their contract the defendants are compellable to accept and pay for the same. The judgment of the superior court is affirmed. (144 N. C. 288) ALLEN et al. v. DURHAM TRACTION CO. (Supreme Court of North Carolina. April 9, 1907.) 1. APPEAL-REVIEW-QUESTIONS OF FACT OPINION EVIDENCE DETERMINING QUESTION OF EXPERT'S COMPETENCY. Where the court has found upon the evidence that a witness is qualified to testify as an expert, its conclusion is not reviewable. [Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3852; vol. 20, Evidence, 2363.] [Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Damages, §§ 243, 251.] 3. TRIAL-INSTRUCTIONS-ISSUES OF CASE. In an action for injuries caused by alighting from a street car, where there was evidence on both sides of the question whether plaintiff alighted while the car was moving, the defendant was entitled to have its phase of the evidence submitted to the jury with the legal effect of the facts, if found, as his evidence tended to prove them. [Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, 88 478, 479.] Appeal from Superior Court, Durham County; Justice, Judge. Action by J. H. Allen and others against the Durham Traction Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded. Manning & Foushee and A. L. Brooks, for appellant. Winston & Bryant Kitchin & Carlton, for appellees. CLARK, C. J. Action for personal injuries sustained by feme plaintiff in alighting from a car of the defendant street railway company. A separate action was brought by her husband for his loss and expenditures caused by such injuries. By consent, the two causes of action were consolidated and tried together. The defendant's first three exceptions are on the ground that the court permitted Dr. A. R. Tucker, an osteopath, to testify as an expert in regard to the nature of the fractures of the bones of the feme plaintiff, and to testify as to the amount paid him for his services to her, in considering the quantum of damages. The court found upon the evidence that Dr. Tucker was an expert. This conclusion is not reviewable. State v. Wilcox, 132 N. C. 1131, 44 S. E. 625; Geer v. Water Co., 127 N. C. 355, 37 S. E. 474, and cases there cited. The court decides as to the admissibility of the witness as an expert; the jury decides as to the weight to be given to his testimony. Flynt v. Bodenhamer, 80 N. C. 207. The amount paid him for his services is, of course, not binding on the jury, but they can take into consideration the reasonable worth of the attention and nursing rendered by him in passing upon the measure of damages. Even if it had been true that Dr. Tucker could not, under Revisal 1905, § 4502, have recovered for his services to the feme plaintiff in an action at law, this is not an action by him to recover compensation. His services were not criminal (State v. Biggs, 133 N. C. 729, 46 S. E. 401, 64 L. R. A. 139, 98 Am. St. Rep. 731), and, the plaintiff having paid him for his services, if they were reasonably proper attention under the circumstances, the jury could take their value into consideration. Laws 1907, c., has incorporated the "North Carolina Society of Osteopaths" as a recognized branch of healing; but aside from that, if Dr. Tucker's services had been availed of to alleviate pain or in nursing, the reasonable amount paid for such services was a matter for consideration by the jury. If, in a case like this, a bill for medical services were barred by the statute of limitations, its payment could not be enforced at law, but, if paid, it would be a proper item for consideration by the jury in assessing the damages. The defendant asked the court to charge as follows: "If the jury shall find from the evidence that the feme plaintiff was at the time of her injury in feeble health, and that she undertook to alight from the car while it was moving slowly, and in attempting to alight stepped from the car at right angles to the direction in which the car was moving, or with her back in the direction in which the car was moving, and she was thrown to the ground and injured, then she was guilty of contributory negligence, and the jury will answer the second issue 'Yes.'" The court gave the prayer modified, however, by striking out the concluding part, and inserting instead that "the jury will consider the facts as bearing on the issue of contributory negligence." In this there was error. was evidence from which, if believed, the jury might have found the state of facts recited in this prayer. There was evidence to There |