majority"> Davis, J.

after stating the facts: The first exception is to the sufficiency of the probate of the mortgage deed from Isaac L. Simpson. The name of the subscribing witness, as appears attached to the deed, was “Ivey L. Potter Simpson,” and the certificate is that it was “proved before me by Ivey L. Potter, a subscribing witness thereto,” &c. Assuming that the clerk, by mistake, or from any other cause, omitted the surname, the factum of the execution of the mortgage, or of its-probate and registration, is not denied, and the objection was properly overruled. Love v. Harbin, 87 N. C., 249.

The second exception is to the competency of the plaintiff Robert Simpson to testify that “$50 were paid upon the said note before judgment. Nothing was paid afterwards,” &c.

The mortgagor and maker of the note was dead, and wre do not think that the plaintiff was a competent witness to prove, for any purpose necessary to support his action, that a payment had been made, or that none was made. They necessarily concerned “transactions” with the deceased, about which he could testify, and might testify differently, if living, and we think he was rendered incompetent as a wdt *560 ness for any such purpose, both by section 580 and section 590 of The Code.

It was in evidence (the plaintiff Robert Simpson himself testified) that a sale of the land in dispute was made to W. L. Simpson, one of the mortgagees, and J. Q. Lemond, executor of the other, and that at the sale the land was bid off by S. H. Walkup for said William L. Simpson; that he did not know why Walkup did not take the deed to himself. It was further in evidence that W. L. Simpson and J. Q. Lem-ond, executors, &c., executed on the 6th of June, 1870, a deed to W. C. Ogburn; that Ogburn was not at the sale, and did not bid off the land, nor authorize anyone else to bid it off for him; that W. L. Simpson, one of the mortgagees, asked him to let the deed be made to him; it was so made, and he, on February 11th, 1878, more than seven years after-wards, conveyed it to the feme plaintiff, and that nothing was paid. The mortgagees, for whose indemnity the deed was made, had no power under the deed to sell or foreclose the mortgage by sale,-public or private, and if they had, the evidence tends strongly to show m.ala fides in the sale; that there was, in fact, no bona fide sale to Walkup or Ogburn, who acted for, and at the request of, the mortgagee Simpson. There appears to have- been no consideration for the deed from the mortgagees to Ogburn, or. from him to the feme plaintiff, and the evidence is sufficient to create much more than a mere suspicion of collusion between the mortgagees and plaintiffs, and the defendant was entitled, substantially, to the first instruction asked. We say “substantially,” because there is no direct evidence that Walkup transferred his bid to Ogburn at the instance of Simpson, though there is no evidence of any bid except by Walkup.

If the mortgagees had power under the mortgage to sell, the effect of their deed of June 6th, 1870, if made fairly and without collusion, would be to foreclose the mortgage and the relation of mortgagor and mortgagee ceased, but if they *561 had no authority to sell, and we think they had none, the legal title remained in them, and the land could only be subjected, whether as a security for the payment of the debt to the male plaintiff, or in exoneration of the sureties thereto, by an action to foreclose the mortgage, and the feme plaintiff cannot recover possesssion of the land in this action.

But it is insisted that the deeds from the mortgagees to Ogburn, and from Ogburn to the feme plaintiff, if not valid to pass the title' to her, conveyed at least the naked legal title, and, as the land is security for the payment of the male plaintiff’s debt, this may be treated as an action for foreclosure to pay it.

Assuming that the mortgagors could have transferred to the male plaintiff the legal title held by them in exoneration of their liability, and that this would have put the naked legal title in him, and that, having the equity to have the land applied to the payment of his debt, he might bring an action in his own name, without joining the mortgagees against the mortgagor to foreclose (we do not say that this could be done), yet, that certainly could not be done in this action.

There is no legal title of any sort in the male plaintiff, and this action is not brought to foreclose. On the contrary, it is brought to recover the possession of the land only, and that, not upon any claim of title by the male plaintiff, but upon the claim of title of the feme plaintiff, and the only relief demanded is the possession of the land and damages for retention, and not to foreclose the mortgage for the payment of the male plaintiff’s debt, or for the exoneration of the sureties thereto, who are not parties to this action; and besides the claim of the defendants set up in their answer that, if not entitled to the land, they are entitled to have it sold under the mortgage to pay any sum that may be due, etc., is denied by the replication. No such cause of action is alleged by the complainant, and there could be no *562 such recovery as that to foreclose, etc., in this action. Willis v. Branch, 94 N. C., 142, and cases there cited.

The judgment is both for recovery of possession by the jeme plaintiff, and that the defendants be declared mortgagees, or trustees, etc., and that the land be sold. This is a judgment for both of tlje plaintiffs, in double and conflicting aspects, and cannot be sustained.

We think there was, in several aspects of the case, evidence that should have been passed upon by the jury, under instructions from the Couri, and that there was error in refusing the first and fifth prayers for instruction, and the charge, as given in the judgment rendered, and we need not consider whether if, in an action brought by the male plaintiff to subject the land as a security for the payment of his debt, the statute of presumptions would bar, and whether, in such an action, the mortgagees would be necessary parties, nor is it necessary to consider the other exceptions in the case on appeal.

Error.

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