83 S.E. 182 | N.C. | 1914
Civil action, heard on motion in this cause.
The motion was to enforce collection of the purchase money for a tract of land bought and held by Sallie E. Pierce, a defendant at a judicial sale under decree in this cause. The sale having taken place in July, 1898, and said purchaser having been since in possession of the land and having paid no part of the purchase money, the relief sought was resisted chiefly by reason of the ten-year statute of limitations. (136) There was judgment, in effect, that unless the purchase money and interest were paid in sixty days, the commissioners to proceed to resell the lands and report to the court for confirmation, etc.
Defendant Sallie Pierce having duly excepted, appealed to this Court. On the hearing it was properly made to appear that in the above entitled action at February Term, 1898, the land in question was ordered sold under decree in the cause for the purpose of paying certain debts established in favor of M. W. Faison and H. E. Faison, executors of H. W. Faison, against T. B. Pierce, a codefendant; that H. L. Hill was appointed commissioner, and a sale was had in July, 1898, when Sallie E. Pierce, wife of T. B. Pierce, and also a defendant, became the purchaser at the price of $2,300. The sale was reported to the court and was confirmed at August Term, 1898; and the decree further directed, "That the commissioner collect the purchase money and apply the same to the judgment heretofore rendered in favor of the executors of H. W. Faison, and, upon the receipt of this purchase money, make a deed to the purchaser."
The cause was here "dropped from the docket," and remained so until August Term, 1912, when on motion of H. E. Faison, surviving executor, the same was reinstated for the purpose of enforcing collection of the purchase price of the property by a resale. The motion was continued *174 from time to time till February Term, 1914, and it appearing that the purchase price had never been paid, and that Sallie Pierce, the purchaser, was still in possession under her said purchase, a decree was rendered, as stated, that unless the said purchase money was paid in sixty days the commissioner resell the land, etc.
Upon these, the facts chiefly relevant, it was contended for defendant that she was protected by the ten-year statute of limitations, and by reason of same collection of the purchase money could not be enforced. But in our opinion that position cannot be sustained. In Williams v. McFadyen,
"Our statute of limitations applies to final judgments, or to judgments or decrees which partake of that nature, and was never intended to affect interlocutory judgments, and in a cause still pending. The action to enforce a vendor's lien for unpaid purchase money, where the (137) vendee, defendant, is in possession under bond for title, is in many of its aspects like a proceeding of foreclosure and sale to collect a debt secured by mortgage. Where a definite indebtedness is declared, and judgment therefor entered and foreclosed by sale decree, such judgment is final as to the amount of indebtedness so adjudicated, and it is final also for purposes of appeal as to all debated and litigated questions between the parties preceding such a decree; but as to all subsequent questions arising as incident to the sale, the occupation and possession of the property by the parties of record, the collection and distribution of the proceeds, and the like, the decree is interlocutory, and the cause is still pending. Knight v. Houghtalling,
"The double aspect of this class of decrees, being final in some respects and in others interlocutory, is recognized in the authority relied upon by the defendant, McGaskill v. Graham, supra, where it is said byFurches, J.: `The judgment of $754.93 was a personal judgment, and was final. The judgment foreclosing the mortgage was the exercise of the equitable jurisdiction of the court, and was not what would have been a final decree in equity, and was not so in this case.' And so it is here. *175 The judgment as to the debt is final, and on plea of statute, properly entered, could no longer be enforced as a judgment in personam and against other assets of deceased; but, in a proceeding in rem, the cause is still pending for the purpose of carrying out the provisions of the decree directing a sale of the property and an application of the proceeds to the satisfaction of the plaintiff's debt. We have it, then, that as to the questions involved in this motion the cause is still pending."
And the principle as noted is in accord with authoritative cases here and in other jurisdictions (Clement v. Ireland,
We find nothing in McGaskill v. McKinnon,
The judgment of his Honor to enforce the collection of this debt by resale of the property is further supported by a line of decisions in this jurisdiction to the effect that in executory contracts for the sale of land the statute of limitations will not operate to protect the possession of the purchaser or prevent a sale for the purchase price until the required time has elapsed after a hostile relationship has been established between vendor and vendee, as by a demand and refusal, etc. Worth v. Wrenn,
In Worth v. Wrenn, supra, it was said: "The statute of limitations, when properly pleaded, will bar an action for the debt so as to prevent any judgment in personam to be collected out of other property of the debtor; but it will not prevent the appropriation of the property held and occupied under the bond until ten years have elapsed from the time when there has been a demand and refusal. This follows, no doubt, from the principle uniformly held with us, that the occupation of the vendee in such cases is permissive and rightful, and that such occupant is entitled to a demand and reasonable notice before he can be required to surrender the possession.Allen v. Taylor, supra, and the authorities therein cited." *176
We are not inadvertent to the position insisted on by plaintiff, that inasmuch as it has been made to appear that since the judgment in the present case was rendered the defendant Sallie E. Pierce has paid the purchase money, with interest, and has received a deed from the commissioner, and that the questions involved in the appeal have become an abstract proposition which the Court will not determine. The principle referred to is well recognized in proper instances, but on perusal of the record and the facts in evidence we think it clearly appears that the money was paid in to abide the disposition of the appeal, and that if the decision had been in favor of the purchaser the money was to be refunded. We have therefore considered the case upon its merits, and find no error in the judgment.
No error.
Cited: Pendleton v. Williams,
(139)
