40 S.E. 848 | N.C. | 1902
When this case was here before,
Upon the cause being called at the first term after the opinion had been certified down, the defendant Davenport relied upon his plea, not before passed upon, that the relief of selling the land under the lien is barred by the lapse of time. The judgment whose lien is here sought to be enforced was docketed 21 December, 1889, the land was conveyed to J. R. Davenport, as has been found by a verdict in this cause between these parties, for value and without notice of any fraud. This proceeding was begun 22 August, 1899, and the lien thereof has long since *64
expired. A purchaser under a decree of sale, if now ordered, would get no title. The point is expressly decided, Pipkin v. Adams,
The point now presented, as already stated, was not raised in the former opinion, which passed only upon the appropriate form of (91) relief, and not upon defenses to the merits, and the matter is not res judicata.
There is
Error.
Cited: King v. Powell,