(Filed 17 February, 1932.)
Appeal by plaintiffs from Harwood, Special Judge, at August Term, 1931, of Yancey.
Civil action to remove cloud from title.
Tbe facts are these:
1. On 28 July, 1926, R. F. Gardner and wife conveyed to tbe plaintiffs, by warranty deed, a lot of land situate in tbe town of Burnsville, N. C. This deed was not registered until 25 May, 1927.
2. Thereafter, on 12 April, 1927, R. P. Gardner and wife gave tbe Yancey Building and Loan Association a deed of trust on a tract of land situate in tbe town of Burnsville, which included tbe lot previously sold to tbe plaintiffs. This deed of trust was duly registered 20 April, 1927.
3. Plaintiffs allege tbat tbe inclusion of their lot in tbe defendant’s deed of trust was tbe result of inadvertence or mistake on tbe part of tbe grantors therein.
From a judgment of nonsuit entered at tbe close of plaintiffs’ evidence, they appeal, assigning error.
Charles Hutchins for plaintiffs.
C. B. Hamriclc and Watson & Fouls for defendant.
Pee Cueiam.
In tbe absence of an allegation of fraud or mutual mistake, it would seem that tbe case is- controlled by tbe decision in Baton v. Doub, 190 N. C., 14, 128 S. E., 494, upon which tbe judgment was entered, rather than on tbe principles announced in Sills v. Ford, 171 N. C., 733, 88 S. E., 636, cited by tbe plaintiffs.
Affirmed.