As our decision of the determinative question presented by plaintiff's assignments of error with respect to the trial of the third issue will dispose of this appeal, we shall not decide or discuss questions presented by his other assignments of error. None of these questions involve the third issue, which is alone determinative of the right of defendant, Carolina Beach Corporation, to recover of the plaintiff in this action. There was no appeal from the judgment that plaintiff, as against the defendants who are the holders of the legal title to the land described in the complaint, is the equitable and beneficial owner of said land and is entitled to a conveyance to him of the legal title held by said defendants. The judgment in that respect is final and conclusive.
In its answer, the Carolina Beach Corporation alleges that the plaintiff is estopped from asserting his ownership of the equitable title to the land described in the complaint, if it shall be adjudged in this action that he is entitled to such ownership, and from thereby defeating the right of said corporation, as a creditor of John E. Baker, deceased, to have said land sold for the payment of its debt. This general allegation *438is based, primarily, on tbe specific allegation that the plaintiff, at the time it extended credit to the said John R. Baker, and as an inducement for the extension of such credit, represented to said corporation that the said John R. Baker was the owner of the land described in the complaint. Plaintiff in his reply .to the said answer, denied that he made such representation.
The burden of proof on the issue thus raised by the pleadings, and submitted to the jury as the third issue, was on the defendant, Carolina Beach Corporation. Plaintiff contends that there was no evidence from which the jury could find that plaintiff made any representation to the Carolina Beach Corporation, with respect to the title to the land described in the complaint, as alleged in defendant’s answer. This contention is presented by plaintiff’s, assignments of error based on his exception to the refusal of the court to allow his motion for judgment as of nonsuit, at the close of all the evidence, by his exceptions to the refusal of the court to give his prayers for instructions on the third issue, and by his exceptions to instructions as given by the court on said issue in its charge to the jury. ¥e are of opinion that these assignments of error should be sustained, for that there was no evidence tending to show that plaintiff, orally or otherwise, made any representation to the defendant with respect to the title to the land described in the complaint. As there was no evidence to sustain an affirmative answer to the third issue, the judgment founded on such answer must be reversed.
Plaintiff is not estopped from asserting as against the defendant, Carolina Beach Corporation, his equitable title to the land described in the complaint by the fact alone that the deed by which said land was conveyed to John R. Baker was on record in Mecklenburg County and that it did not appear on the face of said deed that the said John R. Baker held only the legal title to said land as trustee for the plaintiff. At the date of the commencement of this action, the Carolina Beach Corporation was merely a creditor of John R. Baker; it had acquired no lien, by docketed judgment or otherwise on the land described in the complaint. Plaintiff was the owner of the equitable title to said land, which was enforceable not only against the holder of the legal title, but also against all persons, other than purchasers for value, without notice. Spence v. Pottery Go., 185 N. C., 218, 117 S. E., 32. See, however, Trust Co■. v. Collins, 194 N. 0., 363, 139 S. E., 593, in which it is said:
“The principles upon which the doctrine of equitable estoppel is founded have been more frequently applied where the title to property, real or personal, has passed immediately, by sale or conveyance; they are likewise applicable, a.t least ordinarily, where credit has been extended upon the well-founded belief of the creditor that his debtor is the owner of specific property, subject to sale under execution on a judg*439ment against him, wbicb in truth and in fact is owned at the time by another, who prior to the extension of credit has represented to the creditor that the debtor is the owner of the property. In such case, where all the essential elements of an equitable estoppel are found to exist, it may well be held that the true owner is estopped from asserting his title as against the creditor who has reduced his debt to judgment.”
The only evidence relied upon by defendant, Carolina Beach Corporation,- as tending to show that plaintiff represented to said corporation that John R. Baker was the owner of said land, was the testimony of the president and of the secretary of said corporation. Both of these witnesses for the defendant testified that at a conference between them and the said John R. Baker, prior to 22 June, 1921, the said Baker represented to them that he wias the owner of the land described in the complaint, and that a subsequent examination of the records of Mecklen-burg County showed that a deed by which the said land had been conveyed to him was duly registered in said county. There was evidence tending to show that at this time Baker was the private secretary and agent of the plaintiff, but also tending to show that at said conference Baker was acting for himself, and not for the plaintiff. The plaintiff was not present at said conference. Both the witnesses testified that they had no communication with plaintiff, oral or otherwise, with respect to the subject-matter of said conference, or with respect to the title to the land described in the complaint. In the absence of any evidence tending to show that plaintiff made any representation to the defendant corporation with respect to the title to said land, prior to its extension of credit to the said Baker, plaintiff’s motion for judgment -as of nonsuit should have been allowed.
Although John R. Baker held the legal title to the land described in the complaint, under the deed dated 12 January, 1921, and duly recorded on 14 February, 1927, as trustee for the plaintiff, at the time he represented that he was the owner of said land, such representation, being in disparagement of the title of the plaintiff, and for the benefit of the said Baker, only, was not competent as.evidence against the plaintiff. Perkins v. Brinkley, 133 N. C., 348, 45 S. E., 652.
There are other errors in this appeal for which plaintiff would be entitled to a new trial. As there was error, however, in the refusal of the court to allow plaintiff’s motion for judgment as of nonsuit, it is needless to discuss errors for which a new trial should be granted.
The judgment that plaintiff is estopped as against the Carolina Beach Corporation to assert his equitable title to the land described in the complaint unless and until he pays to the said corporation the amount of its debt against the estate of John R. Baker, deceased, as found by the jury, and that the land be sold for the payment of said debt, is
Reversed.
*440DEFENDANTS* APPEAL.
Appeal by defendant, Carolina Beacb Corporation, from Sink, Special Judge, at May Special Term, 1929, of Mecklenbueg. Dismissed.
From judgment in accordance with, the answer to the fourth issue submitted to the jury at the trial of this action, defendant, Carolina Beach Corporation, appealed to the Supreme Court.
Oscar 0. Efird, John M. Robinson and Hunter M. Jones for plaintiff.
Ratcliff, Hudson & Ferrell and Tillett, Tillett & Kennedy for defendant, Carolina Beach Corporation.
Connor, J. The question presented by this appeal need not be decided, as we have held in plaintiff’s appeal from the judgment in this action, that said judgment must be reversed for error in the refusal of plaintiff’s motion for judgment as of nonsuit. This appeal is
Dismissed.