Hargett v. . Lee

Stacy, 0. J.

The argument submitted.by plaintiff on his appeal from the judgment of nonsuit treats the case as one in ejectment, but this is not the theory upon which it was tried in the court below. An appeal ex necessitate follows the theory of the trial. Walker v. Burt, 182 N. C., 325, 109 S. E., 43; Holland v. Dulin, ante, 211; Shipp v. Stage Lines, 192 N. C., 475, 135 S. E., 339.

In an action to avoid an instrument on the ground of fraud, non est factum, it is provided by C. S., 441, subsection 9, that suit shall be commenced within three years after the cause of action accrues; that is…