55 S.E. 365 | N.C. | 1906
The plaintiff claims title to the land in controversy under the will of his wife, Sarah Yates Pardon. The defendant claims under a deed executed by the wife alone, 4 January, 1904. The Court charged the jury that if the plaintiff had permanently abandoned his wife prior to and at the time of the execution of the deed to the defendant, it was a valid conveyance under Revisal, sec. 2117, and the plaintiff would not be entitled to recover. The charge of the Court is clear and free from error upon this, the only question at issue on the trial, and presents fully the contentions of both parties.
The only exception presented in the brief of the appellant is that there is no sufficient evidence of abandonment, and that (539) the Judge should have so instructed the jury. It nowhere appears in the record that the plaintiff requested the Court so to charge, or that the plaintiff handed up any prayer for instructions to the jury. He cannot be heard, therefore, to raise that question by motion to set aside the verdict. "if he is silent when he would speak, he ought not to be heard when he should be silent." Boon v. Murphy,
No Error.