4 S.E. 502 | N.C. | 1887
The case is governed, not by the statute of limitations, but by the statute of presumptions, in force prior to 24 August, 1868. That statute (Rev. Code, ch. 65, sec. 19) (522) provides that "the presumption of payment or abandonment of the right of redemption of mortgages, and of other equitable interests, shall arise within ten years after the forfeiture of said mortgage," etc. "The statute," says Ruffin, J., in Headen v. Womack,
When the facts are admitted or proved, the presumption "becomes a conclusion of law from facts, to be applied by the court, and not left to the discretion of the jury."
The cases above cited, and the authorities by which they are supported, leave no doubt as to the construction to be placed on sec. 19, ch. 65, of the Revised Code. It was a statute of repose, and whether his Honor was correct or not — in holding that the death of David Houck, Sr., must be taken from the evidence to have occurred in 1849the issue was immaterial, and whether answered one way or the other could not affect the legal result.
The refusal to submit an immaterial issue, which can in no way affect the merits of the case, cannot be assigned as error. Perry v. Jackson,
In the latter case it was said that a needless issue submitted to the jury, which could in no way be prejudicial, was not assignable as error; much less can the refusal to submit an immaterial or unnecessary issue be assigned as error.
After the trial there was a motion for a new trial, supported by an affidavit, on the ground of newly discovered testimony, which was refused. This was a matter of discretion, which cannot be reviewed by this Court, and from which, as has been often held, no appeal lies.
Affirmed.
Cited: Summerlin v. Cowles,
(523)
