Williams v. Administrator of McFadyen

IloKE, J., after stating the case: We are unable to x>erceive in what way or by what statute of limitations the plaintiffs are barred of their right to enforce the collection of their debt by a sale of the property. The defendants more particularly insist that the demand is barred by the ten-year statute of limitations, applicable to judgments (Revisal, sec. 891), and that this position finds support in a direct adjudication of this Court. McCaskill v. McKinnon, 121 N. C., 194. But we do not think their position is well taken, or that they have correctly interpreted the authority cited as applied to the facts of the present case. 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 vendee, defendant, is in possession under the bond of 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 foreclosure by sale decreed, 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 *159 tbe sale, tbe occupation and possession of tbe property by tbe parties of record, tbe collection and distribution of tbe proceeds, and tbe like, tbe decree is interlocutory and tbe cause is still pending. Knight v. Houghtalling, 94 N. C., 408; Clement v. Ireland, 138 N. C., 136; Null v. Cumming, 155 N. Y., 309; Morgan v. Casey, 73 Ala., 222. This is true in all jurisdictions where tbe cause in express terms is retained for further orders and decrees, and it is true with us from tbe force and effect of such a decree, and whether such a feature formally appears or not, for our decisions are to tbe effect that a decree for absolute sale, without requiring a report to be submitted for further consideration by tbe Court, is irregular and improper and will be set aside on motion. Foushee v. Durham, 84 N. C., 56; Mebane v. Mebane, 80 N. C., 34. Tbe double aspect of this class of decrees, being final in some respects and in others interlocutory, is recognized in tbe authority relied upon by defendant, McCaskill, admr., v. Graham, supra, where it is said by Furches, 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. 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, as 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. Plaintiffs are here representing the same interests and asserting the same right claimed and established by the unexecuted and interlocutory decree; and defendants, as successors .and heirs at law of *160 Duncan McFadyen, deceased, are parties of record, bound by the terms of tbe decree, subject to tbe orders of tbe Court made in tbe cause, and when nothing bas occurred to put them in a hostile attitude, so as to cause tbe statute to operate for their protection. Tbe Judge below was correct, therefore, in ruling that plaintiff’s right to proceed was not barred by tbe statute of limitations. Inasmuch as some of tbe affidavits offered and used on tbe bearing are styled complaints, and some of tbe notices issued are called summons, we deem it well to note that tbe relief sought by plaintiff on this bearing, tbe cause not having'terminated by final judgment, is only to be bad by motion in tbe cause; and that, according to our present decisions, an independent action instituted and prosecuted as such will not longer be treated as a motion in a pending cause. Long v. Jarratt, 94 N. C., 443; Faison v. Mc Ilwaine, 72 N. C., 312. It is evident here, however, from a perusal of tbe record and papers, that all tbe notices issued and the affidavits filed were in tbe pending cause, and that tbe parties have properly treated them as a proceeding in that cause, and no new action was entered or contemplated. There is no error, and tbe judgment is. Affirmed.