Call v. . Dancy

*496 Walker, J., after stating the case: When the land was sold under the power contained in the mortgage or deed of trust and conveyed to the plaintiffs as purchasers, ' they thereby acquired the title of Louisa Dancy, the mortgagor, and she is now estopped by her' deed of mortgage from asserting that her title did not thus pass to them, there being no equitable element involved in the transaction: that is, no suggestion of fraud, undue influence or other ground recognized in equity as sufficient to avoid the mortgage or the subsequent sale under the power. The plaintiffs are, therefore, tenants in common with the defendants and entitled to the relief they demand, unless in some way they have lost the title since the sale was made. The defendants aver that they have, for the reason that Louisa Dancy, whose undivided interest they acquired, has been in adverse possession of the land for ten years since the maturity of the mortgage and for seven years under color of title since the sale and prior to the commencement of this proceeding. The first part of this defense is palpably based upon an erroneous assumption, both as to the law and the facts. The sale was made in August, 1893, within one year after the right to sell under the power .accrued, and by the sale the relation of mortgagor and mortgagee was terminated and the title, which was before held upon condition subsequent or mortgage, was converted into an absolute one, which vested in the plaintiffs, as purchasers, by the execution of the power,- so that the ten years’ statute, which is pleaded, does not apply. Nor if ten years had elapsed from the date of the accrual of the right to sell to the date of the sale, would the plea be good. Menzel v. Hinton, 132 N. C., 660; Cone v. Hyatt, ibid., 810. But it so happens that less than one year had elapsed. As to the defense that the said Louisa Dancy has held the land adversely for seven years under color of title, this- *497 manifestly does not toll tbe entry of the plaintiffs ox defeat their right to recover. There is no evidence that Louisa Dancy acquired her interest in the lands by deed or other writing sufficient in law to constitute color of title. Tier own testimony tends to show that she and the other defendants asserted title to the land as tenants in common, by virtue of the long-continued adverse possession of themselves and those under whom they claim, or by descent from J. E. Dancy,-or by descent and mesne conveyances. But whether Louisa claimed her one-third interest by adverse possession, without color, held prior to the date of her mortgage, or by adverse possession, with color, or by a paper title or by descent, that title passed out of her by the sale under the power given by her to the Clerk of the Court in the mortgage, the fair and voluntary execution of which she admits, and it is not available to her in any way since the sale, so as to vest a good title in her by any adverse possession short of twenty years duration. Any deed held by her prior to the sale cannot now be used as color; Johnson v. Fallow, 35 N. C., 84; Wilson v. Brown, 134 N. C., 400. The doctrine is fully explained in the last-cited case by Justice Connor. Louisa Dancy could re-invest herself with the title to her former interest only by purchase from the owners or by a new disseisin or ouster, or its equivalent in law, and an adverse possession of twenty years or possession under color for seven years. She has acquired no colorable title since the sale. The controversy here as to the title, is not between tenants in common, but between two of the tenants in common and Louisa Dancy, who is an outsider, as to her former one-third interest in the land. The other tenants cannot claim to have defeated the title or barred the entry of the plaintiffs, who had become their co-tenants, for they have not held adversely *498 to them, since their title was vested, for a sufficient length of time to produce that result. We have so recently discussed this question that it will be sufficient merely to cite the case. Dobbins v. Dobbins, 141 N. C., 210. The fact that the defendant Louisa Dancy was not notified of the sale under the mortgage is no defense in this action, as the mortgage does not provide for notice and there is no allegation of unfairness or fraud in making the sale. The sale was duly advertised, and the plaintiffs aver in their petition that the defendant Louisa had due notice of it. No issue was tendered as to the validity of the sale, and that question is therefore not presented. The only question which is really involved in the case relates to the statute of limitations, and the charge of the Court as to that matter was erroneous. We find in the record no evidence of title in Louisa Dancy. It is clear, we think, that Revisal, sec. 391 (4), and Ray v. Pearce, 84 N. C., 485, have no bearing on the case. A new trial is ordered because of the error in the charge. New Trial.