the proposed amendment is a different matter, another subject of controversy, or the same matter more fully or differently laid to meet the possible scope and varying phases of the testimony." With respect to the objection that the amendment was erroneous in . allowing the demand for damages to be increased from $10,000 to $25,000, it is met by the same considerations. "Amendments of the ad damnum are never deemed to constitute a new cause of action." 1 Ency. Pl. & Pr., 586; Lockwood v. Bridge Co., 60 S. C. 496, 38 S. E. 112, 629.

4. It is sumbitted under the fifth exception that Judge Gage erred in granting the amendments, and that the court should now dismiss the complaint because of Judge Ernest Gary's holding in granting a new trial that "the preponderance of the testimony shows that the plaintiff's own negligence contributed to his injury as a proximate cause thereof." It is contended that this order of Judge Gary not appealed from is a final decision of the question of fact as to contributory negligence, and therefore that the complaint should be dismissed. The power to grant new trials upon the court's view as to the weight of the testimony rests in judicial discretion, and there is no appeal from its exercise except where error of law is involved. Judge Gary's remark about the testimony was merely the court's reason for granting the new trial, and is not a finding of fact to be reviewed by appeal, as the judge is not the tribunal invested with power to pass upon questions of fact in law cases. The legal effect of the order granting a new trial was merely to restore the case to its status before the trial, which necessarily involved a conclusion that the new trial should take place under the existing pleadings, wherein contributorý negligence is a matter in issue, subject, of course, to the court's power to amend the same.

The exceptions are overruled, and the judgment of the circuit court is affirmed.

(74 S. C. 282)

CAMPBELL v. HARRIS LITHIA SPRINGS CO.

(Supreme Court of South Carolina. April 21, 1906.)

DOWER-RELEASE-SETTING ASIDE.

A complaint to set aside renunciation of dower, and for admeasurement of dower, alleging the renunciation of dower before a proper officer, but charging that the release was obtained from dowress by the coercion of her husband and his family, and that she was not separately examined, but which does not charge that the grantee participated in the fraud or had knowledge thereof, does not state a cause of action.

Appeal from Common Pleas Circuit Court of Laurens County; Klugh, Judge.

Action by Sudie M. Campbell against the Harris Lithia Springs Company. From an order overruling demurrer to the complaint, defendant appeals. Reversed.

of February, 1905, at which time and for many years prior thereto she was his lawful wife. (2) That during the coverture of the plaintiff with the said Rev. Thomas A. Campbell he was seised and possessed of one undivided half interest in all that tract of land, situate in the county and state aforesaid, now known as the Harris Lithia Spring, containing 2291/10 acres, more or less, bounded by the lands of Chas. Madden, John Grant, Frank Franklin, Willis Dendy, and Joe Watts, and lying on the waters of Cane creek, being the waters of Saluda river. (3) That on the 24th day of March, 1891, and during the coverture of the plaintiff with the said Rev. Thomas A. Campbell, he, together with Mrs. Anna A. Carter, executed a deed of conveyance of the said tract of land to Mrs. Mamie B. Harris, and at the time of execution of said deed the plaintiff appeared before M. T. Simpson, notary public, and without being privately and separately examined by him, and not acting freely and voluntarily, but with the compulsion, dread, and fear of her said husband and of the members of his family, she signed an instrument in writing before the said notary, and in the presence of her husband and several persons in connection with, attached to, or on the back of said deed of conveyance, purporting to be a relinquishment or renunciation of her dower in the real estate described in the said deed of conveyance, which the plaintiff is informed and believes was without her knowledge and consent, and against her will spread upon the records of the office of the clerk of court of said county and state; but that the plaintiff avers, that ever since the execution of the said renunciation, or relinquishment of dower, she has expressed her unwillingness to be bound by the same, on the ground that the same was not obtained from her in accordance with the requirements of law, and she takes this as the first reasonable opportunity since the death of her husband to disavow and repudiate the said alleged renunciation or relinquishment of dower, as fraudulent, null and void. (4) That the defendant, the Harris Lithia Springs Company, is in possession of the said tract of land, and has taken to itself and continues to appropriate to its own use and benefit the income, issues, rents, and profits of the said tract of land, and refuses to admeasure, set off, and deliver, or in any matter whatsoever to allow the plaintiff her reasonable dower in the said tract of land, and to allow her any part of the income, issues, rents, or profits thereof. (5) That the defendant, the Harris Lithia Springs Company, is a corporation duly created and organized under the laws of the state of Georgia, and own property in this county and state, and has an office and a prominent place of business,

with agents representing it, at Harris Springs, in the county of Laurens and state of South Carolina, at or near Waterloo, in Laurens county, S. C. (6) That the plaintiff is entitled to and to have admeasured to her as her reasonable dower one-third of one undivided half in fee of the said tract of land, together with an accounting of the income, issues, rents, and profits since the death of her husband. Wherefore, the plaintiff demands judgment that the alleged renunciation of dower be declared fraudulent, null, and void, and that her dower be admeasured to her in the said tract of land, and in the income, issues, rents, and profits thereof, and for the costs and disbursements of this action." From order overruling demurrer, defendant appeals.

E. B. Baxter and Dial & Todd, for appellant. Bonham & Watkins and F. P. McGowan, for respondent.

JONES, J. We think the demurrer should have been sustained, in so far as it is based upon the ground that the complaint does not state a cause of action, in that it fails to allege that the grantee, Mrs. Harris, knew or had any reason to suspect the fraud and imposition alleged in the taking of the renunciation. It is true the complaint alleges the facts, as to coverture, seisin, and death of the husband of demandant in dower, which would, if stated alone, allege a cause of action, but the complaint goes further, and alleges a renunciation of dower by plaintiff before an officer qualified to take the same. This last fact is necessarily a complete bar to the action, unless the complaint should go further, and allege facts which would in law destroy the renunciation. This the complaint fails to do. The certificate of the officer and the signature of the dowress is conclusive as to the truth of the recitals therein as to an innocent purchaser, relying upon the presumption that the officer has done his duty. It may be that the renunciation may be attacked for want of power. Morris v. Webb, 17 S. C. 559, 43 Am. Rep. 629 (a hard case, the doctrine of which should not be extended), and it may also be attacked for fraud or imposition; but in such case it must appear that the grantee was a party to the fraud or took title with notice or knowledge of it. 2 Scribner on Dower, 371; White v. Graves, 107 Mass. 325, 9 Am. Rep. 38. It is true our cases hold to a strict compliance with the forms required by statute regulating renunciation of dower or inheritance (Townsend v. Brown, 16 S. C. 99; Bratton v. Burris, 51 S. C. 45, 28 S. E. 13; Brown v. Pechman, 53 S. C. 1, 30 S. E. 586), and while the stern enforcement of this rule seems hard at times, yet the grantee from a mere inspection may see whether the statutory method has been followed; but a very different question is presented when it Is songht to contradict by evidence aliunde the truths of the recitals in the renuncja

Mc

tion. The officer being charged by the law with the duty of ascertaining the facts recited, and he having certified thereto as required by statute, this should be held conclusive of the facts recited, in the absence of fraud or imposition brought home to the grantee, in analogy to the well-settled general rule that to annul a deed for fraud it must appear that the grantee participated therein. To hold otherwise would unsettle title to lands in the hands of innocent purchasers to an alarming extent.

The judgment of the circuit court is reversed, and the demurrer sustained, without prejudice to the right of plaintiff to apply for leave to amend the complaint so as to allege, if so advised, that the grantee, Mrs. Harris, participated in or had knowledge of the alleged fraud when title was executed to her.

Acts 1897, p. 275, c. 169, § 69 (7), providing that tax deeds shall be presumptive evidence that notice had been served and due publication had before the time of redemption had expired, applies to the notice required by section 51 (page 268) to be given by the sheriff before the sale.

[Ed. Note. For cases in point, see vol. 45, Cent. Dig. Taxation, § 1556.]

2. SAME-NOTICE BY SHERIFF.

Under Acts 1897, p. 268, c. 169, § 51, requiring the sheriff to personally serve notice of a tax sale on a delinquent taxpayer or his agent at least 30 days before the sale, or to notify him by publication once a week for 4 successive weeks, where land was listed for taxes on April 4th and sold on May 1st, the purchaser acquired no title.

[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, §§ 1332, 1340.]

3. SAME-NOTICE BY PURCHASER-PUBLICATION-AFFIDAVIT-SUFFICIENCY.

Under Acts 1897, pp. 272, 273, c. 169, §§ 64, 65, requiring a purchaser at tax sale, before receiving the deed, to make affidavit showing notice to the owner, if not found in the county, by publication in a newspaper three times, the first publication to be not more than five months, and the last not less than three months, before the time of redemption expires, an affidavit stating that the purchaser caused the notice to be published for four successive weeks more than three months before the expiration of the time of redemption, and that the first insertion was made not more than five months and the last insertion not more than three months before the time of redemption expired, was insufficient, and the purchaser acquired no title by the deed.

Appeal from Superior Court, Swain County; Neal, Judge.

Action by John G. Matthews against A. M. Fry and another. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Plaintiff sued to recover a tract of land in the possession of defendant. He introduced a grant from the state and connected him

self with it by mesne conveyances. The defendant, admitting that plaintiff was once seised of the land, claims that his title was divested by a tax sale and deed, under which he has acquired the title formerly belonging to the plaintiff. The land was not listed for taxes in 1898, and in 1899 the county commissioners ordered it to be placed on the tax books and double taxed. It was entered for taxation on the sheriff's book, but not on the book in the office of the register of deeds. It was ordered to be entered and assessed for taxation in the name of John G. Eve, a former owner, and not in the name of plaintiff, and an order to show cause was directed to be issued to Eve, who, it appears, was dead at the time. The order was, of course, never issued and served. The entry of the land on the sheriff's book was made on the 4th day of April, 1899, and the land was sold on the 1st day of May, 1899, just 26 or 27 days after the entry was made on the tax book. It does not appear that the sheriff gave any notice of the sale, by publication or otherwise, either to the plaintiff, who was the owner at the time, or to the public. The entire tract of 640 acres was sold for $8.68, but the sheriff conveyed only 639 acres to the defendant, who was the purchaser. Defendant filed with the sheriff an affidavit which he alleges complied with the requirements of sections 64 and 65, c. 169, pp. 272, 273, of the Public Laws of 1897, under the provisions of which the land was listed and sold for taxes. In that affidavit defendant states that more than three months before the expiration of the time of redemption allowed by law he caused a notice to be published for four successive weeks in a newspaper in Bryson City, setting forth therein the facts as to his purchase and the other facts required to be stated, and that "the first insertion of said notice was made not more than five months and the last insertion not more than three months before the time of redemption expired." Plaintiff testified, and the judge so found, that he did not know the land had been assessed in Swain county, as he thought it was located in Macon county, and did not know of the sale. He offered to pay the defendant all the taxes and interest, and also $100, rather than have a lawsuit, and told the defendant that he did not think he should try to hold the land, as he had an equity on it and had not tried to avoid payment of the taxes. The parties waived a jury trial, and agreed in writing that the judge should find the facts, and enter judgment thereon as upon the facts he might decide the law to be. We have made the above statement from his honor's finding. Judgment was given for the defendant, and the plaintiff appealed.

Dillard & Bell, for appellant. Jones & Johnston and Shepherd & Shepherd, for appellees.

WALKER, J. (after stating the case). The case turns upon the construction of sections 51, 64, and 65, c. 169, pp. 268, 272, 273, of the Acts of 1897, the sale having been made and the deed of the sheriff to the defendant having been executed under the provisions of that act. It is required by section 51 that before any real estate shall be sold for taxes the sheriff shall personally serve notice of such sale on the delinquent taxpayer or his agent at least 30 days before such sale, if the defendant resides in the state. If he is a nonresident, the sheriff is required to notify him by mail, and also by publication in a newspaper in his county once a week for four successive weeks preceding the sale, and, if there is no newspaper in the county, then by a like notice for four successive weeks by posting the same on the door of the courthouse of the county. Provision is made for the form of the notice. According to the construction placed by this court on subsection 7, § 69, c. 169, p. 275, of the aforesaid act, the sheriff's deed is only presumptive evidence that the notice to the owner or delinquent taxpayer has been given, and the publication made as required by section 51. In King v. Cooper, 128 N. C. 347, 38 S. E. 924, the present Chief Justice assigns the reasons for this interpretation of the act and says: "For which reasons, and from the context, we think the notices and publication presumed under section 69 (7) to have been given, are those required of the sheriff by section 51 of said act; but the notices required with so much particularity to be given by the purchaser under the new sections (64 and 65) must be proved by him." That case correctly interprets the statute, and is now approved and followed by us. It settles the meaning of the law as thoroughly as if it had been expressed in the statute with the same clearness and conclusiveness as it is stated by the court in the language quoted. It is not liable to misconstruction, nor is it a matter of doubt. Its true meaning can no longer be questioned, if we are to respect at all the salutary doctrine of stare decisis. Tested by this rule, that the sheriff's deed is only presumptive evidence of his compliance with the provisions of section 51, which requires the sheriff to serve notice on the delinquent taxpayer, the defendant has acquired no title to the property by his purchase, as the sheriff failed to serve the notice. The judge finds as a fact that the land was listed for taxationthat is, entered on the book-on April 4, 1899 and was sold on May 1, 1899, less than 28 days after it was listed, the length of notice being four weeks or 28 days. Early v. Homans, 16 How. (U. S.) 610, 14 L. Ed. 1079. So that it was impossible for the sheriff to have given the required notice, and in this connection the judge further finds as follows: "It does not appear that the sheriff gave any notice, by publication or otherwise, of the sale, either to the owner or to the pub

lic." The presumption arising from the deed is therefore rebutted. The reasons and the necessity for such a notice are fully stated and sustained by cogent argument and the citation of many authorities in 1 Blackwell on Tax Titles (5th Ed.) § 398 and note 1. "The publication of notice to taxpayers, required by tax laws, is an indispensable preliminary to the legality of a tax sale, and it must be made in strict accordance with the statutory requirement." State v. Newark, 36 N. J. Law, 288; Farnum v. Buffum, 4 Cush. (Mass.) 260; Early v. Homans, supra. In this respect a distinction is made between a sheriff's sale under an ordinary execution and one under a tax assessment. 1 Blackwell, 397; Early v. Homans, supra. Section 51 seems to have been drawn with reference to this distinction, for the language used is appropriate to create a condition precedent. That such notice to the delinquent is essential was expressly decided in Hill v. Nicholson, 92 N. C. 24. There, it is true, a mortgagee claimed the right to be notified, and it has been held since that, when the sale is sufficient to pass the title as to the mortgagor, it will also conclude the mortgagee. Exum v. Baker, 115 N. C. 242, 20 S. E. 448, 44 Am. St. Rep. 449; Powell v. Sikes, 119 N. C. 231, 26 S. E. 38; King v. Cooper, supra. But we cite the case of Hill v. Nicholson only for the principle that the notice is essential and must be given to the owner or delinquent, who, in the case of a mortgage, would be the mortgagor, and in this case the plaintiff. It would seem that the statute, as construed in King v. Cooper, supra, by making the sheriff's deed only presumptive evidence that the notice was given, itself recognizes that the service of the notice is an "essential prerequisite to the validity of the sale." Subdivisions 8 and 10 of section 69, which were relied on by the defendant in answer to this position, are to be read in connection with the other subdivisions and construed with reference to those subdivisions. Any other construction would produce a conflict between the first seven subdivisions and subdivisions 8 and 10. Indeed, subdivision 10 is expressly made subject to the first seven subdivisions.

But we think that the affidavit of the defendant is not in compliance with sections 64 and 65. It is there required that the notice shall be inserted in the newspaper three times, the first publication to be not more than five months and the last not less than three months before the time of redemption will expire; that is, the delinquent must have at least three months' notice, and time to redeem after the publication is completed.. It is stated in the affidavit that more than three months before the expiration of the time of redemption the defendant caused the notice to be published in a weekly paper for four successive weeks. "The first insertion of said notice in said paper was made

not more than five months, and the last insertion not more than three months, before the time of redemption expired." If by the first part of the affidavit it was intended to say that the notice was published for four successive weeks, and that the last publication was more than three months before the time for redemption expired, then it cannot be reconciled with the other statement that the last insertion was "not more than three months" before the expiration of the said time. But if it was intended to state that the publication was commenced more than three months before the expiration of the period of redemption and continued for four successive weeks, which is likely, it would certainly not be a sufficient allegation under the statute. It is probable that the affidavit does not set forth what was really intended; but it is impossible for us to say that it is a compliance with sections 64 and 65, as it does not clearly state the facts. When it is said that "the last insertion was not more than three months before the time of redemption expired," the affidavit does not by any means negative the idea that the last publication was made less than three months before the expiration of the time, and yet the statute requires it to appear affirmatively from the affidavit that the last publication was not made within the three months. Perhaps the affiant intended to say "not less than three months," instead of "not more than three months"; but we must decide the case upon the record as it is. Our conclusion is that the affidavit, being radically defective, was not prima facie evidence that the requisite notice had been given, and, besides, as the making of a proper affidavit was a condition precedent to the defendant's right to call for a deed, with which he has not complied, he has not acquired title to the land.

There are other irregularities, but they need not be specially considered. Reversed.

(141 N. C. 358)

MORGAN v. HARRIS et al. (Supreme Court of North Carolina. May 16, 1906.)

1. PLEADING-EXTENDING TIME.

Under Revisal 1905, § 512, providing that the judge may, in his discretion, allow an answer or reply to be made or other act to be done after the time limited, the court may, when a case is reached for trial without answer, permit defendants to answer or demur.

[Ed. Note. For cases in point, see vol. 39, Cent. Dig. Pleading, § 175.]

2. SAME-FRIVOLOUS DEMURRER.

The demurrer to the complaint on the ground that as plaintiff had only a life estate by reason of the testamentary deed to her daughters, and her later conveyance, which was sought to be set aside for fraud, provided that the grantees should not be in full and lawful possession until plaintiff's death, plaintiff had cause of action, is frivolous; the testamentary deed made part of the complaint not be

no

When a demurrer to the complaint is friv olous, plaintiff is entitled to judgment by default, unless the trial court is of the opinion that in the exercise of a sound discretion the facts justify permission to answer over.

Appeal from Superior Court, McDowell County; O. H. Allen, Judge.

Action by Rebecca Morgan against E. C. Harris and others. The court overruled a demurrer to the complaint, but refused to hold it frivolous. Both parties appeal. Modified.

Sinclair & Johnston and W. T. Morgan, for plaintiff.

Justice & Pless, for defendants.

CLARK, C. J. This is an action by an old woman, SO years of age, to set aside a deed, her execution of which she alleged had been procured by the conspiracy, fraud, and misrepresentation of the male defendants; the said deed being in favor of the wife of one of them and her sister, and falsely reciting that $200 had been paid when nothing had passed. She averred that she signed the deed upon defendants' representing to her that it was a will devising said land to her two daughters, the defendants well knowing that she had already executed a paper, "in the nature of a testamentary deed" giving said land to her two daughters, upon certain conditions and stipulations as to her support and maintenance and reserving right and authority to cancel said paper, upon the violation of such conditions, which paper had not been delivered to said daughters nor recorded, but had been put in safe keeping, for delivery, it seems, after her death.

The case being reached for trial, and there being no answer filed, the plaintiff moved for judgment. The court, instead, permitted the defendants to answer or demur. This was in the discretion of the court. Revisal 1905, § 512. The defendants thereupon, instead of denying the serious allegations in the complaint, demurred upon the ground that as the plaintiff had only a life estate by reason of the "testamentary deed" to her daughters and the conveyance to defendants complained of provided that the "grantees shall not be in full and lawful possession till her death," the plaintiff had no cause of action. The "testamentary deed" (so called) was not absolute, like that to feme defendants, but was subject to revocation upon certain conditions (if valid at all), and had neither been delivered nor recorded. Both papers were set out as exhibits to the complaint, and the demurrer is clearly frivolous, and was probably interposed for delay that the death of plain

tiff might remove the witness to the alleged fraud.

The judge properly overruled the demurrer, but erred in not holding the same frivolous, and he could have signed the judgment tendered by plaintiff. Cowan v. Baird, 77 N. C. 201. A frivolous demurrer is one "which raises no serious question of law." Johnston v. Pate, 83 N. C. 110; Dunn v. Barnes, 73 N. C. 273; Hurst v. Addington, 84 N. C. 143; Porter v. Grimsley, 98 N. C. 550, 4 S. E. 529. When a demurrer is overruled, the defendant is entitled to answer over as a matter of right, "if it appear that the demurrer was interposed in good faith." Revisal 1905, § 506. But when the demurer or answer is frivolous, the plaintiff is entitled to judgment, unless the court, in the exercise of a sound discretion, permits the defendant to answer over. This was not done here, because the judge did not hold the demurrer frivolous, and leave to answer over was, therefore, not necessary. The refusal to hold a demurre or answer frivolous, and to render judgment thereon is not appealable. Walters v. Starnes, 118 N. C. 842, 24 S. E. 713; Abbott v. Hancock, 123 N. C. 89, 31 S. E. 271, where the reasons are given. The plaintiff's appeal must, therefore, be dismissed, but when the case goes back, with this judgment holding the demurrer to be frivolous, the plaintiff will be entitled to judgment by default unless the court below is of opinion that, in the exercise of a sound discretion, the facts justify permission to answer over. The defendants will pay all the costs in this court. Revisal 1905, 8 1279.

In plaintiff's appeal: In defendant's appeal: firmed.

Appeal dismissed. Modified and af

(141 N. C. 473)

MOORE v. McCLAIN. (Supreme Court of North Carolina. May 22, 1906.)

1. EJECTMENT-PRIMA FACIE TITLE-Burden OF PROOF.

Where, in ejectment, plaintiff showed a prima facie title, such fact did not shift the burden of proof on the issue of title but imposed on defendants the duty of going forward with their evidence and of showing a superior title.

[Ed. Note. For cases in point, see vol. 17, Cent. Dig. Ejectment, § 244.]

2. BOUNDARIES-COURSES AND DISTANCES.

Where one of the boundaries of a grant called for a course and distance to a stake on a certain line and there was a discrepancy in the calls, the natural object called for would control.

[Ed. Note. For cases in point, see vol. 8, Cent. Dig. Boundaries, §§ 6, 12.]