after stating tbe casé: There was much evidence taken as to tbe false representation, but we do not deem it necessary to consider tbe exceptions to it or to tbe charge, as we think error ivas committed in tbe admission of certain testimony. Tbe plaintiffs’ witness, W. D. Cope, was permitted to testify, after objection by tbe defendant, that tbe plaintiffs bad given a deed of trust on tbeir borne place to tbe defendant to secure a loan of $500. We bave examined tbe case critically with a view of ascertaining what possible relevancy this testimony bad to tbe matter in dispute, and find it has none; yet it was admitted and allowed to be used before tbe jury as a material fact in tbe case. It is readily seen bow it was prejudicial to tbe defendant, *133if we consider tbe nature of tbe case, and of tbe other testimony, tbe direct question involved, and bow little would be required to turn tbe scales against tbe defendant. Tbe minds of tbe jurors should not be diverted from tbe precise questions in issue by tbe introduction into tbe case of collateral and irrelevant matters, especially such as are calculated to prejudice one of tbe parties and prevent a fair and impartial trial; and especially is this so where, as in this case, tbe defendant is charged with tbe commission of a fraud. It was competent for plaintiffs to show what their damages were and what outlay they bad made in consequence of tbe fraud, if any was practiced; but it was not relevant to this controversy that they should be allowed to inquire as to tbe kind of mortgage they'bad made to tbe.defendants for the purpose of borrowing money, with tbe view of showing that it rested upon their home place, and thus appeal to tbe sympathy of tbe jury’. Tbe evidence was improper and should have been excluded.
Tbe case is not like that of Lea v. Pearce, 68 N. C., 76; Whitehead v. Hellen, 76 N. C., 99; McLeod v. Bullard, 84 N. C., 516; Jones v. Pullen, 115 N. C., 465, and others of a like kind, where as between trustor and trustee, mortgagor and mortgagee, and persons occupying other fiduciary relations towards each other, tbe law raises a presumption of fraud or undue influence because of tbe power and influence which tbe one is supposed to have over tbe other, and requires tbe former to rebut tbe presumption and show tbe fairness and good faith of tbe transaction, and that tbe result was attained without tbe use of any such power or influence. In'those cases tbe mortgagee bad dealt directly with tbe mortgagor in purchasing tbe equity of redemption. But not so here, for there was no dealing between these parties with reference to tbe purchase of tbe plaintiffs’ home, which bad been mortgaged by the defendant. Tbe evidence had no bearing on tbe issues, and could not have been used, and we must assume that it was used, as that was its only use, to weaken tbe defendant in answering tbe charge of fraud in regard to tbe sale of tbe timber. “Where tbe inadvertent effect of receiving immaterial evidence has been to injure a party by *134exciting sympathy for his adversary, or hostility to himself, or in any other way, its admission constitutes reversible error.” 16 Cyc., 1115. As said in Denning v. Gainey, 95 N. C., 532, there was no legitimate use to be made of the proposed inquiry, and it was calculated to prejudice the minds'of the jury, and its exclusion was proper. Where this was the case, a similar question, and having the same general. bearing, was asked in Hutchins v. Hutchins, 98 N. Y., 56, where the Court said: “Illegal evidence that would have'a tendency to excite the passions, arouse the prejudices, awaken the sympathies, warp or influence the judgment of the jurors in any degree, cannot be ,considered as harmless.” Citing Anderson v. R. R., 54 N. Y., 334, and quoting from Judge Lamed’s opinion in the court below as follows: “Nothing could be better fitted to divert the minds of the jury from the true issue than a pathetic contrast between the widow of a rich brother and the poor defendant.” And the same may be said of this evidence, which was “fitted” to present just such a situation: the poverty of plaintiffs, who had lost their home by the mortgage, and the wealth of the defendant, who owned broad acres of timber land.
This error entitles the defendant to another jury.
New trial.