The plaintiff, as executor of M. C. Mansfield, brought this action against T. C. Wade, administrator of E. H. Gorham, to recover on a note for $3,000, made to his testatrix (now due on same $2,330.66, with interest from 7 July, 1934). Among the collateral notes to secure this $3,000 note was a certain note and deed of trust, executed by G. L. Arthur, Jr., and wife, to W. S. Harris, trustee, for State Bond and Mortgage Corporation, of Wilson, N. O., for $2,750, which was duly recorded in register of deeds’ office for Carteret County, N. O.
The controversy was over the G. L. Arthur, Jr., note and deed of trust to W. S. Harris, trustee for State Bond and Mortgage Corporation. Arthur filed an answer raising the issue: “Had the note sued upon been paid and satisfied prior to the time it was delivered to the plaintiff’s testatrix, as alleged?”
The plaintiff, in the questions presented, says: “May the court find a technically sound charge to the jury on such evidence, so admitted, over objections ?”
*795Tbe evidence introduced by- defendant was for tbe purpose of showing payment — some of it was perhaps immaterial, and some was corroborative on tbe main issue of payment; but we do not think any of tbe evidence incompetent or prejudicial. All of it was objected to by plaintiff, but we do not think these exceptions and assignments of error can be -sustained.
The plaintiff contends that it impinged N. C. Code, 1935 (Michie), ■sec. 1795, which is as follows: “Upon the trial of an action, or the hearing upon the merits of a special proceeding, a party or a person interested in the event, or a person from, through, or under whom such a party or interested person derives his interest or title by assignment or otherwise, shall not be examined as a witness in his own behalf or interest, or in behalf of the party succeeding to his title or interest, against the executor, administrator or survivor of a deceased person, or the committee of a lunatic, or a person deriving his title or interest from, through, or under a deceased person or lunatic; by assignment or otherwise, concerning a personal transaction or communication between the witness and the deceased person or lunatic; except where the executor, administrator, survivor, committee, or person so deriving title or interest is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence concerning the same transaction or communication.”
We do not think that plaintiff can call to his aid this section, if it were applicable under the facts and circumstances of this case. The plaintiff’s testimony and “Exhibit A” “opens the door.” Plaintiff, to show title in his testatrix, introduced in evidence: Deed of trust, dated 6 March, 1928, Eecord Book 35, page 289, executed by Gilbert L. Arthur, Jr., and wife, Elorrie H. Arthur, parties of the first part, W. S. Harris, trustee, party of the second part, and State Bond and Mortgage Corporation, of Wilson, N. 0., party of third part, conveys Lot 3, Block 201. Securing even dated note for'$2,750, maturing 6 May, 1928, made by Gilbert L. Arthur, Jr., and Elorrie H. Arthur, to State Bond and Mortgage Corporation, of Wilson, N. C.; endorsements on note: “Pay to order of E. H. Gorham, State Bond and Mortgage Corporation, by W. S. Harris, Pres.; Pay to order of Mary C. Mansfield — E. H. Gor-ham.” Also, plaintiff’s testimony “opens the door.” Plaintiff’s testatrix based her title to the note and deed of trust on the following endorsements : “Pay to order of Mary C. Mansfield, E. H. Gorham.”
It was competent for Arthur to introduce the evidence which he did on the trial, to be submitted to the jury, on the issue of payment, to show that the note and deed of trust was paid and E. H. Gorham hard no right to transfer it. The jury so found. The question of payment was the material controversy in this issue.
*796In Herring v. Ipock, 187 N. C., 459 (463), speaking to tbe subject, it is said: “Tbat wben a personal representative ‘opens tbe door’ by testifying to a transaction, etc., it is not in bis province, but tbat of tbe court,, to decide wbat testimony favorable to tbe adverse party may ‘come in.’ From a careful review of tbe authorities, we tbink tbat tbe plaintiff’s contention is correct, and tbe court below made no error in permitting tbe testimony. Cheatham v. Bobbitt, 118 N. C., 343; Sumner v. Candler, 92 N. C., 635; Hawkins v. Carpenter, 85 N. C., 482; Pope v. Pope, 176 N. C., 287.” Walston v. Coppersmith, 197 N. C., 407; Lewis v. Mitchell, 200 N. C., 652 (653).
As to tbe second issue: All of tbe evidence showed tbat plaintiff’s testatrix acquired tbe note and deed in trust about October, 1928. Tbe note matured 6 May, 1928. Having acquired tbe note after maturity, it was subject to equities — tbat of Arthur as to payment.
Wbat constitutes Holder in Due Course — N. 0. Code, 1935 (Micbie), sec. 3033. Rights of Holder in Due Course — sec. 3038. Wben Subject to Principal Defenses — sec. 3039. Who Deemed Holder in Due Course —sec. 3040. Whitman v. York, 192 N. C., 87 (90); Bank v. Atmore, 200 N. C., 437; Dyer v. Bray, ante, 248 (249). Presumption as to Time of Endorsement — sec. 3026. Ins. Co. v. Jones, 191 N. C., 176 (180).
For tbe reasons given, in tbe judgment of tbe court below there is
No error.
Devin, J., took no part in tbe consideration or decision of this case.