#### W. J. BUNDY, Guardian of J. W. SUTTON, SR. (J. W. SUTTON, Substituted in His Own Behave), v. SARAH E. SUTTON, Deposed Guardian of J. W. SUTTON, SR., L. W. TUCKER, Receiver of J. W. SUTTON Property, JOE SUTTON, GUY SUTTON, W. H. WOOLARD, Trustee, GREENVILLE BANKING AND TRUST COMPANY, H. L. HODGES, F. C. HARDING, Trustee, VIRGINIA-CAROLINA CHEMICAL CORPORATION, F. M. WOOTEN, Trustee, and NORA PATRICK and J. H. WALDROP.

(Filed 12 December, 1934.)

1. Trial G e — Trial court has no power to amend the verdict of the jury-

The parties have a substantial right in the verdict of the jury, and while the trial court has the power to set aside the verdict in his discretion or as a matter of law to prevent miscarriage of justice, or to allow the jury to correct their verdict with his approval, or to dismiss the action irrespective of the verdict where the plaintiff is not entitled to *423recover on any aspect of the case, the trial court does not have the power to reverse or amend the verdict of the jury by “setting it aside” as to some of the defendants as being against the weight of the evidence while rendering judgment against the other defendants upon the verdict.

2. Trial G b—

The verdict of the jury will be construed in the light of the pleadings and charge of the court.

3. Appeal and Error J e — Amendment of verdict by trial court held not harmless error under facts of this case.

In this case the jury found that nine of the defendants entered a conspiracy to suppress the bidding at the foreclosure sale of plaintiff’s land in order that the two -defendants to who-m the last and highest bid was transferred, and to whom the property was finally conveyed, might acquire the property at a grossly inadequate price, and found in a separate issue that the two defendants to whom the land was finally conveyed conspired together to- this end. The trial court amended the verdict by “setting it aside” as to the trustee in the deed of trust foreclosed, and as to certain other of the defendants, on the ground that as to them the verdict was against the weight of the evidence. Judgment was entered that the transferees of the title held title as trustees *ex maleficio*for the benefit of plaintiff : *Meld,,*construing the verdict in the light of the pleadings and charge, the amendment of the verdict by the court must be held for prejudicial error, since it cannot be ascertained that the jury would have found the transferees guilty of conspiracy when title to the property was outstanding in the trustee who sold same on the open market with no agreement, express or implied, that the transferees should become the purchasers.

Civil actiokt, before Frizzelle, *J.,*at March Term, 1934, of Pitt.

Prior to 1927 tbe plaintiff J. W. Sutton, Sr., -was tbe owner of certain land in Pitt .County, containing approximately 350 acres, and ten teams, farming implements necessary to cultivate a twenty-borse farm, and bad on band approximately 100 bales of cotton. In addition, it was alleged tbat be bad approximately $3,000.00 in casb on deposit in tbe National Bank of Greenville. In tbe fall of 1927 tbe mind of J. W. Sutton, Sr., became impaired. Thereupon bis wife, tbe defendant Sarah E. Sutton, was duly appointed guardian for her husband, and she undertook as such to operate tbe farm. Mr. and Mrs. Sutton bad several children, to wit, Joe Sutton, Guy Sutton, Charlie Sutton, Bessie Willoughby, Fannie Lloyd, James Sutton, Clara Todd, and Eoy Sutton. In tbe spring of 1930 Mrs. Sarah Sutton was removed as guardian and Mr. L. W. Tucker was appointed receiver of tbe estate of tbe incompetent in May, 1930. After Tucker was appointed receiver, by virtue of an order of court be was authorized and directed to borrow tbe sum of $6,500.00, to be used in operating and cultivating tbe lands of J. W. Sutton, incompetent. Thereupon tbe receiver executed and delivered a deed of trust to W. H. Woolard, trustee, for tbe Greenville Banking and Trust Company. This deed of trust is dated 23 February, 1931, and *424covered land, crops, “with all teams, including twelve mules now on said farm, and farming utensils.” Tbe deed of trust to "Woolard, trustee, contained a power of sale in tbe event of default and was duly registered. Tbe note for $6,500.00 was endorsed by tbe defendant H. L. Hodges.

Tbe receiver paid approximately $3,000.00 of said indebtedness, but was unable to pay tbe remainder, amounting to $3,500. Thereafter, in January, 1932, tbe defendant Woolard, trustee, under tbe deed of trust heretofore mentioned, advertised tbe land and personal property for sale. At tbe sale tbe defendant Nora Patrick, through her attorney, tbe defendant E. M. Wooten, appeared and bid tbe sum of $2,597.00 for tbe land. Within ten days after such sale tbe defendant Yirginia-Carolina Chemical Company raised tbe bid as provided by law, and tbe land was readvertised and sold on 10 March, 1932, at which sale tbe defendant J. H. Waldrop, cashier of tbe Greenville Bank and Trust Company, bid tbe sum of $2,750.00. No increased bid was placed upon tbe purchase price and Waldrop having assigned bis bid to Joe Sutton and Guy Sutton, Woolard, trustee, executed and delivered to Joe Sutton and Guy Sutton a deed for tbe land. Tbe personal property was sold on 2 February, 1932, and was purchased by W. H. Dail, Jr., for tbe sum of $310.00.

Thereafter, on 28 March, 1932, Joe Sutton and Guy Sutton executed and delivered to W. H. Woolard, trustee, a deed of trust upon tbe land to secure a note of $3,331.83, payable to H. L. Hodges, at tbe Greenville Banking and Trust Company. This deed of trust covered tbe land and personal property theretofore sold by Woolard, trustee. On tbe same date tbe said Joe Sutton and Guy Sutton executed and delivered to E. M. Wooten and E. C. Harding a mortgage securing a note of $1,750.00 to Nora Patrick, a note for $450.00 to H. L. Hodges, and a note for $2,153.70 to tbe Yirginia-Carolina Chemical Company.

Subsequently, plaintiff W. J. Bundy was duly appointed guardian of J. W. Sutton, Sr., and instituted tbe present action against all tbe defendants, alleging in substance that all tbe defendants named entered into a conspiracy and “did unlawfully, illegally, and fraudulently collude and connive together to tbe end that tbe appeal from tbe order dissolving tbe restraining order should be abandoned, that tbe trustee, W. H. Woolard, should proceed with tbe sale of tbe lands, that tbe said J. H. Waldrop should place a bid on tbe land just a little higher than tbe raised bid of tbe Yirginia-Carolina Chemical Corporation, that in time be should transfer and assign bis bid to Joe and Guy Sutton, for whom in fact be was to do tbe bidding, and that none of tbe other defendants would place any bid on said lands, and that they would suppress tbe bidding on said lands and let tbe said Joe and Guy Sutton bid same in as aforesaid, that tbe Greenville Banking and Trust Com*425pany- would immediately, upon closing of tbe sale, accept from tbe said Joe and Guy Sutton note, or notes, secured by deed of trust on said lands for tbe full amount of tbe indebtedness at tbe time of tbe sale, and carrying same for tbem, tbat tbe said Joe and Guy Sutton, after executing to tbe bant said paper for tbe amount of tbe bid, or wbat was due at tbe time of tbe sale on note beld by tbe bant, would tben execute to F. M. Wooten and F. C. Harding, trustees, a deed of trust on said lands to secure tbe payment of notes for tbe amount claimed to be owing to Yirginia-Carolina Chemical Company and Nora Patriot by Sarah E. Sutton, guardian of J. W. Sutton, and tbat they would further secure tbe amount claimed to be owing to H. L. Hodges, or, in other words, they unlawfully and illegally connived and colluded together to change tbe title to said lands without tbe payment of one cent of money by tbe purchasers, and tbat each and every one who professed to bold a claim should be secured by a mortgage on tbe lands, to be executed by tbe purchasers, regardless of wbat tbe lands brought at tbe sale, and regardless of whether tbe purchasers were indebted to “those to whom they 'were to give security or not. In pursuance of said unlawful, illegal, and fraudulent connivance and collusion on tbe part of said defendants, tbe said trustee did in fact readvertise said lands . . . and thereafter tbe said J. H. Waldrop did unlawfully, illegally, and fraudulently . . . transfer and assign said bid to Joe and Guy Sutton,” etc. After suit was instituted by Bundy, J. W. Sutton was duly and legally declared to be sane, and upon bis petition it was ordered tbat be be made a party plaintiff to tbe suit.

Tbe defendants filed answers denying any conspiracy or unlawful agreement to deprive J. W. Sutton of bis lands, and at tbe trial much evidence was offered by both sides.

When tbe plaintiff rested all tbe defendants moved for judgment of nonsuit. This motion was allowed as to tbe defendants F. M. Wooten and F. 0. Harding, and denied as to all other defendants.

Tbe following issues were submitted to tbe jury:

“1. Did tbe defendants Sarab E. Sutton, Joe Sutton, Guy Sutton, Greenville Banking and Trust Company, W. H. Woolard, trustee, H. L. Hodges, J. H. Waldrop, Nora Patrick, and Virginia-Carolina Chemical Corporation illegally and fraudulently collude and conspire together to suppress tbe bidding at tbe sale of tbe J. W. Sutton lands under tbe Tucker, receiver, deed of trust to W. H. Woolard, trustee, as alleged in tbe complaint ?

“2. Did tbe defendants Joe Sutton and Guy Sutton illegally and fraudulently collude and conspire together to acquire title to tbe lands of J. W. Sutton at an unfair, inequitable, and grossly inadequate price, as alleged in tbe complaint ?

*426“3. Did the defendants Sarah E. Sutton, Joe Sutton, Guy Sutton, Greenville Banking and Trust Company, W. H. Woolard, trustee, H. L. Hodges, J. H. Waldrop, Nora Patrick, and Yirginia-Oarolina Chemical Corporation, by means of said illegal and fraudulent conspiracy and collusion, enable Joe Sutton and Guy Sutton to acquire title to the lands of J. W. Sutton at an unfair, inequitable, and grossly inadequate price, as alleged?

*“4.*Did the defendants Joe Sutton and Guy Sutton, by means of said illegal and fraudulent collusion and conspiracy, acquire title to the lands of J. W. Sutton at an unfair, inequitable, and grossly inadequate price, as alleged?

“5. Did the defendants Joe Sutton and Guy Sutton illegally and fraudulently collude and conspire together to acquire title to the personal property of J. W. Sutton, sold by W. H. Woolard, trustee, at an unfair, inequitable, and grossly inadequate price, as alleged ?

“6. Do the defendants Joe Sutton and Guy Sutton hold title to the lands conveyed'to them by W. H. Woolard by deed dated 28 March, 1932, as trustees *ex maleficio*for the use and benefit of J. W. Sutton, as alleged ?

“7. Do the defendants Joe Sutton and Guy Sutton hold title to the personal property sold by W. H. Woolard, to wit, nine mules, three wagons and three sets of harness, as trustees *ex maleficio*for the use and benefit of J. W. Sutton, as alleged?”

The jury answered the first, second, third, fourth, and fifth issues “Yes.” The trial judge instructed the jury that he would answer the sixth and seventh issues after the jury had determined the proper answers to the first five issues.

After the verdict was returned the record shows the following: “The defendants W. H. Woolard, J. H. Waldrop, H. L. Hodges, and Green-ville Banking and Trust Company having moved the court to set aside the verdict of the jury as to them in answer to the first and third issues on the grounds that said answers were contrary to the weight of the evidence, and the court being of the opinion that said motion should be allowed, in its discretion set aside the verdict of the jury in answers to the first and third issues as to W. H. Woolard, J. H. Waldrop, H. L. Hodges, and Greenville Banking and Trust Company.”

Judgment was entered as shown in the record and the defendants Sarah E. Sutton, Joe Sutton, Guy Sutton, Nora Patrick, and Yirginia-Oarolina Chemical Corporation appealed.

*Gaylord & Harrell for plaintiff.*

*Albion Dunn for Joe Suilon and Guy Sutton.*

*Blount & James for Yirginia-Oarolina Chemical Company.*

*F. M. Wooten for Nora Patríele.*

*427BuogdeN, J.

Has tbe trial judge tbe power to make material amendments to a verdict, as rendered by tbe jury and accepted, and thereupon enter judgment upon such verdict so amended?

A verdict is a substantial right. A trial judge in tbe due and orderly administration of justice has tbe power to set a verdict aside in bis discretion or as a matter of law, and it is bis duty to do so when a palpable miscarriage of justice would result. The ultimate objective of tbe law is to guarantee justice to all tbe parties. A trial is tbe process ordained and sanctioned for realizing that objective. A jury in proper cases may correct its verdict with tbe approval of tbe court in tbe event tbe verdict does not correctly express tbe actual agreement of tbe jury. McCabe Lumber *Co. v. Beaufort County Lumber Co.,*187 N. C., 417, 121 S. E., 755; McIntosh North Carolina Practice and Procedure, p. 665, sec. 603. See, also, *Cole v. Laws,*104 N. C., 651, 10 S. E., 172; *Willoughby v. Threadgill,*72 N. C., 438.

In tbe case at bar, in answer to tbe first and third issues, tbe jury found that nine of tbe defendants bad conspired to suppress bidding at *the*sale, and that by reason of such illegal conspiracy bad enabled Joe Sutton and Guy Sutton to acquire title to tbe lands of their father at a grossly inadequate price. Tbe trial judge amended tbe verdict upon these issues by eliminating four of tbe alleged conspirators, or as stated in tbe record, “set aside tbe verdict of tbe jury as to them.” “'While a change merely as to form is not fatal, tbe court cannot amend or change a verdict in any matter of substance without tbe consent of tbe jury, and cannot do so with their consent after tbe verdict has been finally accepted and recorded.” *S. v. Snipes,*185 N. C., 743, 117 S. E., 500. It was also held in *Rankin v. Oates,*183 N. C., 517, 112 S. E., 32, that tbe “court was without authority to reverse tbe jury’s finding on tbe second issue, answer it himself, and then render judgment on tbe verdict as amended.” Also, in *Sitterson v. Sitterson,*191 N. C., 319, 131 S. E., 641, it was held that “tbe court bad tbe power to set aside tbe verdict, but none to reverse tbe answers of *the*jury.” See, also, *Bartholomew v. Parrish,*186 N. C., 81, 118 S. E., 899; C. S., 591. Of course, if tbe plaintiff is not entitled to recover upon any aspect of tbe case, tbe trial judge has tbe power to dismiss tbe action despite tbe verdict of tbe jury. *Sitterson v. Sitterson, supra.*Moreover, in cases in which a plaintiff is entitled to recover as a matter of law, irrespective of tbe answer of tbe jury to certain issues, a judgment will not be upset even though tbe trial judge struck out an answer of tbe jury to a certain issue and substituted an answer of bis own. This principle was applied in *Sprinkle v. Wellborn,*140 N. C., 163, 52 S. E., 666. *Justice Walker,*tbe author of tbe opinion, remarked: “It was error in doing so, but not reversible error. Tbe court bad tbe power to set aside tbe verdict, as *428to that issue, that is *pro icmto,*but none to reverse the answer of the jury. This was an invasion of their province, but the defendant cannot complain of it, as it worked no material injury in law to him.”

Consequently, it might be asserted by the plaintiff in the present action that as Joe and Guy Sutton now hold the title to their father’s land, and such deed has been set aside, that they have no right to complain because other conspirators were erroneously eliminated from the verdict. A verdict must be construed in the light of the pleadings and charge of the court. When the verdict in the case at bar is so construed it is not clear that the jury would have found Joe Sutton and Guy Sutton guilty of conspiracy when the title to the property was outstanding in Woolard, trustee for the bank, and such trustee duly sold the property as required by law in the open market and with no agreement or understanding, express or implied, that the Suttons should become the purchasers.

Therefore, viewing the case in the light of the pleadings, evidence, and charge of the trial judge, it is the opinion of this Court that the amendment of the verdict was erroneously entered, and for such error a new trial is awarded. In awarding a new trial this Court does not decide any other exception appearing in the record to the end that the case may be retried wholly upon its merits, free from intimation upon all assignments of error contained in the record.

New trial.