the plaintiff, and indorsed by D. Sam Cox. Let the form of the note be reported. The verdict was for the plaintiff.

The defendant has made 15 exceptions which cover 12 pages of the case. Such diffuseness is not to be commended There are practically but two questions in the case, to be presently stated, and they arise out of these circumstances: Cox was about 1910 a client and friend of the defendant, and was operating in real estate about Columbia. He was a large borrower of money, and as such he became indebted to the plaintiff bank in the sum of some $12,000. This indebtedness was so large as to attract the criticism of the State Bank Examiner, so that "at the instance and request of the bank, through its president, the said D. Sam Cox solicited the defendant to make his note in the sum of $1,500, so that his indebtdness might be apparently reduced by that amount."

By the words of the answer such was the genesis of the note sued on, first executed December 6, 1909, and for the purpose suggested.

Both Cox and the defendant were shareholders in a corporation called the "Carolina Investment Company." See Enterprise Bank v. Carolina Investment Company, 112 S. C. 53, 99 S. E. 25. The present contention of fact of the defendant is, and such is the first real issue in the case, that Cox owned certain shares of the Carolina Investment Company's stock, and that the same was pledged by Cox with the plaintiff to secure the payment of the defendant's note and thereby to save the defendant harmless on that score.

The plaintiff denied so much, and claimed that the stock was pledged to secure first a large indebtedness by Cox to the bank on which Lyles was not liable. See Cox v. Bank (April term, 1920), 114 S. C. 693.

The testimony of the witnesses differ as to whether the recitations in the initial note (Deceinber 6, 1909) made mention of the collateral. The note was not in evidence. Subsequent renewals of the note which were in evidence contained such recitals. The renewal note sued on has no such recital.

It is a mistake for the appellant to say that the Court excluded the testimony of the defendant which detailed the execution of the initial note and the pledge of the stock to secure the same. Both parties, the plaintiff and the defendant, testified thereabouts and in contradiction one to the other.

The Court did exclude, and that properly, the alleged agreement between the defendant and Cox about 1 the application of the proceeds of the discounted $1,500 note.

And the Court charged the jury explicitly that, if the contention of the defendant before stated was true, 2 then the bank was bound to apply the collateral to the satisfaction of the defendant's note.

The verdict is manifestly a conclusion of the issue against the defendant.

The defendant's answer makes a second issue. It alleges that there was no consideration moving to the defendant for the note.

But the allegations of the first defense are to the effect that the defendant executed the note to give Cox an apparent credit on his indebtedness to the bank; and the testimony of the defendant is: "When I made the note 3 payable to the order of the Enterprise Bank I did not expect myself to get the money, but I made it for

October Term, 1920.

the purpose and only for the purpose of substitution to the extent of the note, $1,500, for a part of the note-a part of the notes that then were owed by Cox to the bank."

So much was, of course, a sufficient consideration, to wit, the credit of Cox's debt to the bank by $1,500, to support the defendant's promise to pay.

The other exceptions are minor, and, if sound, would not reverse the judgment based on the two cardinal issues we have stated.

The verdict has done substantial justice, and the judgment is affirmed.

MR. JUSTICE HYDRICK did not sit.

10548

SMYTH v. BRUNSON ET AF,

(105 S. E. 893.)

-

1. APPEAL AND ERROR-FINDING SUSTAINED BY EVIDENCE CONCLUSIVE.— The trial Court's finding in a law case, where sustained by sufficient evidence, is conclusive.

2. VENDOR AND PURCHASER-PURCHASER MAY NOT RECOVER FOR SHORTAGE IN GRANT WHERE SALE WAS IN GROSS OF A CERTAIN LOT.-Where a lot was not sold by front foot or square foot, but the sale was in gross of the lot for a certain sum, the purchaser cannot recover of the vendor for the difference between the lot as described in the deed and the lesser amount shown by survey.

Before MAULDIN, J., Greenville, Summer term, 1919. Affirmed.

Action by Ellison A. Smyth against Geo. W. Brunson,

25 S. C. 115.

Jr., B. H. Peace and Thomas Harrison, for deficiency in frontage of a city lot. From decree for defendants the plaintiff appeals.

The decree of the Circuit Judge was as follows:

This case came before me for trial upon exceptions by the defendants to the report of the master, to whom all issues of law and fact were referred.

The plaintiff is a purchaser of a part of what is known as the Heldman lot, conveyed to Heldman by McBee in 1850, and described in that deed as having a frontage of 140 feet on Main street, in the city of Greenville, at the southeast corner of Main and Broad streets. The entire lot was sold as the property of the estate of Heldman by the master and purchased by B. M. McGee, who afterwards sold 81 feet frontage to Alvin H. Dean, the same being on the corner of said streets. Dean sold same to one Harrison and he sold 30 feet frontage to Gower and Houston and 51 feet frontage to B. H. Peace. The plaintiff claims the 51 feet lot through B. H. Peace. The 30 foot lot sold to Gower and Houston was at the corner of Main and Broad streets and upon it they erected a brick building. Afterwards, the plaintiff having acquired the lot adjoining it, the 51 foot lot fronting on Main street, began to build upon it and discovered that between the Gower and Houston building and the lot next below the 51 foot lot, instead of a frontage of 51 feet there was a frontage of only 49 feet 7 inches, a deficiency in frontage of 1 foot 5 inches. The plaintiff then brought this action against his grantors for damages for breach of warranty by reason of the deficiency in frontage; they vouched Harrison and he Alvin H. Dean.

In the first place, it is pertinent to state that the conveyance to the plaintiff was not at so much per front foot or at

so much per square foot; it was a sale of a certain lot for so much money, a sale in gross; and the rule in such case is that where land is sold in gross no compensation will be granted for a deficiency in the quantity conveyed, unless such defificiency is so great as to justify an inference of fraud or mistake equivalent to fraud. This can scarcely be said of a deficiency of 17 inches in a frontage of 612 inches, less than 3 per cent. Upon this ground I hold that the plaintiff is not entitled to recover.

But, assuming for the sake of argument, that he is so entitled, it is evident that his recovery is dependent upon establishing, by the greater weight of evidence, that the walls of the Gower and Houston building occupying the entire space conveyed to them, are correctly located. Naturally if the Gower and Houston building is over the line and upon the 51 foot lot claimed by the plaintiff, his first thought would be to sue them for the possession of the 1 foot 5 inch strip. He has not done so, and pitches his action upon the theory that the Gower and Houston building is properly located, and their title antedating his there has been a breach of warranty in his title. He must go further and show that the lots below him are properly located and are not impinging upon his 51 foot lot. The defendant contends that the Gower and Houston wall on Broad street is at least 1 foot 5 inches further down than it should have been, and that this error on their part has caused the encroachment upon the plaintiff's lot. The defendant has presented a formidable array of facts which convince me that their contention is correct, and I so find; at least they completely meet the plaintiff's effort, as was incumbent upon him, to show by the preponderance of the evidence that the Gower and Houston corner was properly located. Many years ago, shortly after Heldman went into possession of the entire lot, 140 feet