Parrott v. . Hardesty

Allen, J. When the plaintiff procured bis judgment tbe defendant therein was tbe owner of tbe equity of redemption in tbe land, and this was tbe subject of sale under execution. S. v. Pool, 27 N. C., 105; Mayo v. Staton, 137 N. C., 670. The deed of the sheriff made pursuant to'the sale passed this equity of redemption to tbe plaintiff, and was sufficient *669 to enable tbe plaintiff to maintain bis action to recover possession of tbe land against tbe mortgagor, and tbe position of tbe defendant, wbo is tbe .assignee of tbe mortgagor, is no better tban bis. Davis v. Evans, 27 N. C., 532; Black v. Justice, 86 N. C., 512. In tbe last case, after citing tbe casé of Davis v. Evans, tbe Court says: “Chief J ustice Buff in, speaking for tbe Court in tbat case, says: ‘"We consider tbe equity of redemption wben sold under execution, a legal interest to tbe extent, at least, of enforcing it by tbe recovery of possession from tbe mortgagor himself.’ ” It follows, therefore,' tbat tbe plaintiff bas shown title to tbe land in controversy, and was entitled to recover possession unless there is evidence of á possession in tbe defendants tbat would bar tbe plaintiff’s right of action, and in our opinion it is insufficient to do so. Tbe character of tbe possession of tbe husband of tbe. feme defendant prior to tbe execution of tbe deed to her is not shown, and so far as tbe record discloses be was not bolding adversely to any claim, and be may have been in possession by permission or as tenant, and tbe possession by tbe defendants since tbe execution of tbe deed cannot be more tban five years, as tbe deed was executed in 1908 and tbe action was commenced in 1913. Nor can tbe claim of tbe defendant tbat she is rightfully in possession as mortgagee be sustained, because it is expressly stated tbat tbe assignment of tbe note and mortgage to her did not purport to operate upon tbe land. Williams v. Teachey, 85 N. C., 402; Dameron v. Eskridge, 104 N. C., 621; Morton v. Lumber Co., 144 N. C., 31; Weil v. Davis, 168 N. C., 302. This is tbe only question presented in tbe brief, and it does not appear tbat tbe defendant asserted any claim as assignees of tbe note and mortgage of Meadows Company, except tbat it entitled her to retain possession against tbe plaintiff. We call attention to tbe fact tbat there is n0‘ assignment of error in tbe record, and tbat tbe rule requiring assignments to be made is for tbe benefit of tbe Court and to enable it to properly examine cases upon appeal, and tbat counsel cannot waive tbe requirement of tbe rule. No error.