#### MRS. LENA DEAN, Administratrix of the Estate of J. C. DEAN, and LENA DEAN, Individually, v. W. G. DEAN.

(Filed 16 March, 1932.)

Fraud C c — Evidence of fraud in this case held insufficient to he submitted to the jury.

Where notes for the purchase price of lands are made payable to the grantor’s son and not to the grantor, and after the grantor’s death are found pledged as collateral for the son’s note in a bank, and there is no evidence that the son was acting as the grantor’s agent or that any confidential relationship existed between them or any other evidence in explanation: *Held,*the evidence of fraud is insufficient to be submitted to the jury in an action by the administrator of the grantor against the son to recover the value of the notes, and his motion as of nonsuit should have been granted.

Civil actioN, before *Harding, J.,*at June Term, 1931, of Buncombe.

J. C. Dean married and bad two children, the defendant, *W.*G. Dean, and E. A. Dean. After the death of his first wife he married the plaintiff on 16 May, 1928. J. C. Dean owned a lot of land and sold the same to L. F. Gooley in an exchange of property. In the trade Gooley agreed to pay $1,860 in addition to the land which he received in the exchange. Gooley executed five notes, aggregating $1,860, payable to *W.*G. Dean. After the death of J. C. Doan the plaintiff qualified as his adminis-tratrix and brought a suit alleging that she was entitled to dower in various tracts of land, and also that the defendant, W. G. Dean, had wrongfully and fraudulently procured the notes of Gooley, amounting to $1,860. All matters in controversy were eliminated from the suit except the notes of $1,860. ■

The following issues were submitted to the jury:

1. “Did the defendant, "W. G. Dean, fraudulently procure the execution of the purchase money notes for the Blue Eidge Avenue property *386referred to in tbe complaint, from L. E. Gooley to bimself instead of J. C. Dean, tbe grantor in tbe deed of J. 0. Dean to L. F. Gooley, as alleged in tbe complaint?”

2. “Did tbe defendant, W. G. Dean, fraudulently bypotbecate said notes witb tbe Biltmore-Oteen Bank as collateral security for an indebtedness due said bank from tbe said W. G. Dean?”

3. “What damages, if any, is plaintiff entitled to recover of tbe defendant, W. G. Dean, by reason of tbe fraudulent acts of W. G. Dean?”

Tbe jury answered tbe first issue “Yes,” tbe second issue “Yes,” and tbe third issue “$1,860.”

From judgment upon tbe verdict tbe defendant appealed.

*Galloway & Galloway for plaintiff.*

*Marcus Erwin for defendant, W. G. Bean.*

BkogdeN, J.

Tbe defendant insists that there is no evidence of fraud, and consequently tbe motion for nonsuit should have been granted. All tbe pertinent evidence upon which fraud could be predicated, is contained in tbe following admission: “It is admitted that tbe five notes aggregating $1,860, were executed by L. F. Gooley to W. G. Dean as a part of tbe purchase price of Blue Ridge Avenue property described in deed from J. 0. Dean to L. F. Gooley; that W. G. Dean endorsed said notes and deposited same in Biltmore-Oteen Bank as collateral security for said W. G. Dean note in said bank; that two of said notes have been paid, three have not been paid, and that said bank at this time bolds said notes as collateral security for tbe unpaid part of tbe W. G. Dean note.” There is no evidence tending to explain why said notes were made payable to W. G. Dean instead of J. G. Dean. There is no evidence that tbe son was acting as agent for bis father, or that any confidential relationship whatever existed between father and son. In other words, tbe fact-status is substantially as follows: A father owns a piece of land and exchanges said land witb a third party, receiving another parcel of land and notes aggregating $1,860. Tbe notes are made payable to tbe son. Subsequently, tbe notes are found in a bank hypothecated as security for tbe indebtedness of tbe son.

This evidence scarcely rises to tbe dignity of a suspicion and does not disclose, upon tbe facts presented, tbe presence of fraud. Tbe judgment of nonsuit should have been granted.

Reversed.