Tbis was an action to set aside two deeds executed by Zebedee Lamb and bis wife, Cattie 0. Lamb, to tbe defendant Henry Lamb, wbicb it is alleged were never delivered by tbe grantors. Zebedee Lamb is dead, and tbe plaintiffs and tbe defendant are bis children and beirs at law. Cattie 0. Lamb, bis widow, survives and is a party plaintiff.
Upon issues submitted tbe jury found (1) tbat tbe deeds bad been placed by tbe grantor in tbe keeping of Cattie C. Lamb under agreement tbat tbey be retained and not recorded during bis life time, and (2) tbat defendant wrongfully and against remonstrance of Cattie C. Lamb and in violation of tbe agreement obtained possession of tbe deeds and bad same recorded, and (3) tbat upon demand by tbe grantor tbe defendant refused to restore tbe deeds or reconvey tbe lands. Defendant appealed from judgment rendered in accord witb tbe verdict.
*720
Appellant’s principal assignments of error relate to tbe rulings of tbe trial judge in tbe admission of evidence wbicb be contends was prohibited by C. S., 1795. Tbe restriction upon tbe admission of testimony contained in tbis section bas been recently considered by tbis Court, and numerous decisions thereunder collected and cited in
Wilder v. Medlin, ante,
542, and
Burton v. Styers,
“Verdicts and judgments are not to be set aside for harmless error or for mere error and no more. To accomplish tbis result, it must be made to appear not only that the ruling complained of is erroneous, but also that it is material and prejudicial, amounting to a denial of some substantial right.”
Wilson v. Lumber Co.,
Other exceptions were noted by defendant to tbe ruling of tbe court below in the admission or exclusion of testimony, and to tbe form of tbe issues submitted, but upon examination we find these exceptions without *721 substantial merit. Exceptions were likewise noted to the judge’s charge. Appellant complains that the trial judge did not declare and explain the law arising upon the facts in evidence, as required by O. S., 564. However, the case was one involving essentially issues of fact and these seem to have been fairly presented to the jury, with the burden of proof placed upon the plaintiffs throughout.
The record reveals the diligence of appellant’s able counsel. Nothing has been overlooked that might help his cause. But the jury has accepted the view presented by the evidence of the plaintiffs, and rendered a verdict in accord with their contentions. Upon consideration of the entire record we reach the conclusion that the judgment below should be affirmed.
No error.