DeNNY, J.
The first assignment of error is applicable to both appeals, and is directed to the refusal of the court below to strike out the pleadings filed by the appellees after the first report of the Referee had been filed. By permission of the court, and without objection on the part of any of the parties, all of whom were represented before the court at the time the order was made, the appellees were allowed ten days in which to file further pleadings setting up laches. This permission to file additional pleadings was granted in the same order in which the cases were remanded to the Referee to hear such additional evidence as might be offered by the several parties and to state his findings of fact and conclusions of law with reference to the statutes of limitations and pleas in bar set out in the respective pleadings.
The appellants contend that after the first hearing by the Referee, the respective parties were bound by their original pleadings. The contention is not well founded. It is the established practice under our Code system to be liberal in allowing amendments of process and pleadings, to the end that causes may be tried upon their merits. Garrett v. Trotter, 65 N. C., 430; Gilchrist v. Kitchen, 86 N. C., 20; Page v. McDonald, 159 N. C., 38, 14 S. E., 642; Whitehurst v. Hinton, 222 N. C., 85, 21 S. E. (2d), 874; McDaniel v. Leggett, 224 N. C., 806, 32 S. E. (2d), 602; Hatcher v. Williams, 225 N. C., 112, 33 S. E. (2d), 617. It is discretionary with the trial court whether or not to allow an amendment to pleadings setting up laches. The rule relative to such plea is similar to that which allows the trial Judge in his discretion, to allow an amendment to set up the statute of limitations. Smith v. Smith, 123 N. C., 229, 31 S. E., 471; Balk v. Harris, 130 N. C., 381, 41, S. E., 940; Hardin v. Greene, 164 N. C., 99, 80 S. E., 413.
It is well settled in this State that the exercise of a discretionary power by the trial court is not reviewable upon appeal, unless there has been a palpable abuse of such discretion. Gordon v. Pintsch Gas Co., 178 N. C., 435, 100 S. E., 878; Life Ins. Co. v. Edgerton, 206 N. C., 402, 174 S. E., 96; Hogsed v. Pearlman, 213 N. C., 240, 195 S. E., 789; Byers [686]*686v. Byers, 223 N. C., 85, 25 S. E. (2d), 466; Pharr v. Pharr, 223 N. C., 115, 25 S. E. (2d), 471. No abuse of discretion has been made to appear on this record.
PlaiNtiffs’ Appeal in Hughes, et als., v. Oliver.
The plaintiffs assign as error the refusal of the court below to sustain their exceptions filed to the original report of the Referee. This assignment of error cannot be sustained, for the reason that upon the hearing before the court below, his Honor overruled all the exceptions, and set aside all the findings of fact and conclusions, of law of the Referee, except in so far as they coincide with the findings of fact and conclusions of law of the court. Whereupon his Honor proceeded to find the facts, set out his conclusions of law, and to enter judgment accordingly.
The court found as a fact that D. B. Oliver, mortgagee, upon default in the payment of the aforesaid mortgage on the 70-acre tract of land, offered said land for sale at public auction on 4 February, 1932, after due advertisement, and that said land was bid off in the name of D. R. Oliver, but no deed was executed by D. B. Oliver, mortgagee, to D. R. Oliver until 21 April, 1937; that on that day a deed was executed reciting the mortgage sale above referred to and said deed'is dated 16 February, 1932, and was duly recorded 18 May, 1937, in the Registry of Johnston County. The other findings of fact are in substantial accord with the Referee’s findings set out herein, except as to rent. The court below did not pass upon whether or not the plaintiffs are entitled to rents for the use of the 26.5-acre tract, as found by the Referee and to which finding of fact and conclusion of law the defendant did not except.
The court had the power upon the filing of the report of the Referee to affirm, amend, modify or set it aside, and to make its own findings of fact, and, when such findings are supported by competent evidence, they will not ordinarily be disturbed on appeal. Thigpen, v. Trust Co., 203 N. C., 291, 165 S. E., 720. Moreover, there is no evidence set out in the case on appeal, unless the pleadings be treated as such. If they are so treated, they are sufficient to sustain the court’s findings of fact. But if not so treated, it will be presumed that the findings of fact were based upon sufficient evidence. Radeker v. Royal Pines Park Co., 207 N. C., 209, 176 S. E., 285. There are no exceptions to the court’s findings of fact, and the findings of fact are sufficient to support the judgment entered below. Wilson v. Charlotte, 206 N. C., 856, 175 S. E., 306; Efird v. Smith, 208 N. C., 395, 180 S. E., 581; Wilson v. Robinson, 224 N. C., 851, 32 S. E. (2d), 601; Bader v. Coach Co., 225 N. C., 537, 35 S. E. (2d), 609; Fox v. Mills, Inc., 225 N. C., 580, 35 S. E. (2d), 869; Boach v. Pritchett, post, 747.
. The judgment entered below denies a recovery to the plaintiff on three grounds: (1) The defendant having been in possession of the premises, [687]*687under color of title, for seven years next preceding the- institution of this action, plaintiffs’ cause of action is barred by the seven-year statute of limitations, as set out in G. S., 1-38, and pleaded by the defendant; (2) that the plaintiffs, and their ancestor in title, John W. Hughes, not having been in possession of any of said lands within a period of ten years prior to the institution of this action, their cause of action is barred by the ten-year statute of limitations, as set out in G. S., 1-47, subsection 4, and pleaded by the defendants; and (3) that the plaintiffs and their ancestor in title, John W. Hughes, up and until the time of his death,, knew that D. R. Oliver claimed this 70-acre tract of land and that he' constructed buildings thereon and made many improvements on said land, and over a long period of time, these plaintiffs, with full knowledge of these facts, made no claim of right, title or interest in the premises; that they are guilty of laches and are thereby estopped from claiming' any interest in said tract of land.
Seven.years’ adverse possession, under color of title, is a bar in am action in ejectment as to all parties not under disability. G. S., 1-38; Locklear v. Savage, 159 N. C., 236, 74 S. E., 347; Carswell v. Creswell, 217 N. C., 40, 7 S. E. (2d), 58; Ward v. Smith, 223 N. C., 141, 25 S. E,. (2d), 463; Vance v. Guy, 223 N. C., 409, 27 S. E. (2d), 117.
An action for the redemption of a mortgage, where the mortgagee has been in possession, is barred after the expiration of ten years from the time the right of action accrued. G. S., 1-47, subsection 4; Frederick v. Williams, 103 N. C., 189, 9 S. E., 298; Crews v. Crews, 192 N. C., 679, 135 S. E., 784; Ownbey v. Parkway Properties, Inc., 222 N. C., 54; 21 S. E. (2d), 900.
One guilty of laches has simply omitted “to assert a right for an unreasonable and unexplained length of time, under circumstances prejudicial to adverse party.” Black’s Law Dictionary (3rd Ed.), p. 1062, Peedin v. Oliver, 222 N. C., 665, 24 S. E. (2d), 519; Stell v. Trust Co., 223 N. C., 550, 27 S. E. (2d), 524; Hardy v. Mayo, 224 N. C., 558, 31 S. E. (2d), 748.
Free access — add to your briefcase to read the full text and ask questions with AI
DeNNY, J.
The first assignment of error is applicable to both appeals, and is directed to the refusal of the court below to strike out the pleadings filed by the appellees after the first report of the Referee had been filed. By permission of the court, and without objection on the part of any of the parties, all of whom were represented before the court at the time the order was made, the appellees were allowed ten days in which to file further pleadings setting up laches. This permission to file additional pleadings was granted in the same order in which the cases were remanded to the Referee to hear such additional evidence as might be offered by the several parties and to state his findings of fact and conclusions of law with reference to the statutes of limitations and pleas in bar set out in the respective pleadings.
The appellants contend that after the first hearing by the Referee, the respective parties were bound by their original pleadings. The contention is not well founded. It is the established practice under our Code system to be liberal in allowing amendments of process and pleadings, to the end that causes may be tried upon their merits. Garrett v. Trotter, 65 N. C., 430; Gilchrist v. Kitchen, 86 N. C., 20; Page v. McDonald, 159 N. C., 38, 14 S. E., 642; Whitehurst v. Hinton, 222 N. C., 85, 21 S. E. (2d), 874; McDaniel v. Leggett, 224 N. C., 806, 32 S. E. (2d), 602; Hatcher v. Williams, 225 N. C., 112, 33 S. E. (2d), 617. It is discretionary with the trial court whether or not to allow an amendment to pleadings setting up laches. The rule relative to such plea is similar to that which allows the trial Judge in his discretion, to allow an amendment to set up the statute of limitations. Smith v. Smith, 123 N. C., 229, 31 S. E., 471; Balk v. Harris, 130 N. C., 381, 41, S. E., 940; Hardin v. Greene, 164 N. C., 99, 80 S. E., 413.
It is well settled in this State that the exercise of a discretionary power by the trial court is not reviewable upon appeal, unless there has been a palpable abuse of such discretion. Gordon v. Pintsch Gas Co., 178 N. C., 435, 100 S. E., 878; Life Ins. Co. v. Edgerton, 206 N. C., 402, 174 S. E., 96; Hogsed v. Pearlman, 213 N. C., 240, 195 S. E., 789; Byers [686]*686v. Byers, 223 N. C., 85, 25 S. E. (2d), 466; Pharr v. Pharr, 223 N. C., 115, 25 S. E. (2d), 471. No abuse of discretion has been made to appear on this record.
PlaiNtiffs’ Appeal in Hughes, et als., v. Oliver.
The plaintiffs assign as error the refusal of the court below to sustain their exceptions filed to the original report of the Referee. This assignment of error cannot be sustained, for the reason that upon the hearing before the court below, his Honor overruled all the exceptions, and set aside all the findings of fact and conclusions, of law of the Referee, except in so far as they coincide with the findings of fact and conclusions of law of the court. Whereupon his Honor proceeded to find the facts, set out his conclusions of law, and to enter judgment accordingly.
The court found as a fact that D. B. Oliver, mortgagee, upon default in the payment of the aforesaid mortgage on the 70-acre tract of land, offered said land for sale at public auction on 4 February, 1932, after due advertisement, and that said land was bid off in the name of D. R. Oliver, but no deed was executed by D. B. Oliver, mortgagee, to D. R. Oliver until 21 April, 1937; that on that day a deed was executed reciting the mortgage sale above referred to and said deed'is dated 16 February, 1932, and was duly recorded 18 May, 1937, in the Registry of Johnston County. The other findings of fact are in substantial accord with the Referee’s findings set out herein, except as to rent. The court below did not pass upon whether or not the plaintiffs are entitled to rents for the use of the 26.5-acre tract, as found by the Referee and to which finding of fact and conclusion of law the defendant did not except.
The court had the power upon the filing of the report of the Referee to affirm, amend, modify or set it aside, and to make its own findings of fact, and, when such findings are supported by competent evidence, they will not ordinarily be disturbed on appeal. Thigpen, v. Trust Co., 203 N. C., 291, 165 S. E., 720. Moreover, there is no evidence set out in the case on appeal, unless the pleadings be treated as such. If they are so treated, they are sufficient to sustain the court’s findings of fact. But if not so treated, it will be presumed that the findings of fact were based upon sufficient evidence. Radeker v. Royal Pines Park Co., 207 N. C., 209, 176 S. E., 285. There are no exceptions to the court’s findings of fact, and the findings of fact are sufficient to support the judgment entered below. Wilson v. Charlotte, 206 N. C., 856, 175 S. E., 306; Efird v. Smith, 208 N. C., 395, 180 S. E., 581; Wilson v. Robinson, 224 N. C., 851, 32 S. E. (2d), 601; Bader v. Coach Co., 225 N. C., 537, 35 S. E. (2d), 609; Fox v. Mills, Inc., 225 N. C., 580, 35 S. E. (2d), 869; Boach v. Pritchett, post, 747.
. The judgment entered below denies a recovery to the plaintiff on three grounds: (1) The defendant having been in possession of the premises, [687]*687under color of title, for seven years next preceding the- institution of this action, plaintiffs’ cause of action is barred by the seven-year statute of limitations, as set out in G. S., 1-38, and pleaded by the defendant; (2) that the plaintiffs, and their ancestor in title, John W. Hughes, not having been in possession of any of said lands within a period of ten years prior to the institution of this action, their cause of action is barred by the ten-year statute of limitations, as set out in G. S., 1-47, subsection 4, and pleaded by the defendants; and (3) that the plaintiffs and their ancestor in title, John W. Hughes, up and until the time of his death,, knew that D. R. Oliver claimed this 70-acre tract of land and that he' constructed buildings thereon and made many improvements on said land, and over a long period of time, these plaintiffs, with full knowledge of these facts, made no claim of right, title or interest in the premises; that they are guilty of laches and are thereby estopped from claiming' any interest in said tract of land.
Seven.years’ adverse possession, under color of title, is a bar in am action in ejectment as to all parties not under disability. G. S., 1-38; Locklear v. Savage, 159 N. C., 236, 74 S. E., 347; Carswell v. Creswell, 217 N. C., 40, 7 S. E. (2d), 58; Ward v. Smith, 223 N. C., 141, 25 S. E,. (2d), 463; Vance v. Guy, 223 N. C., 409, 27 S. E. (2d), 117.
An action for the redemption of a mortgage, where the mortgagee has been in possession, is barred after the expiration of ten years from the time the right of action accrued. G. S., 1-47, subsection 4; Frederick v. Williams, 103 N. C., 189, 9 S. E., 298; Crews v. Crews, 192 N. C., 679, 135 S. E., 784; Ownbey v. Parkway Properties, Inc., 222 N. C., 54; 21 S. E. (2d), 900.
One guilty of laches has simply omitted “to assert a right for an unreasonable and unexplained length of time, under circumstances prejudicial to adverse party.” Black’s Law Dictionary (3rd Ed.), p. 1062, Peedin v. Oliver, 222 N. C., 665, 24 S. E. (2d), 519; Stell v. Trust Co., 223 N. C., 550, 27 S. E. (2d), 524; Hardy v. Mayo, 224 N. C., 558, 31 S. E. (2d), 748.
Here the plaintiffs, with full knowledge of all the facts relative to the 70-acre tract of land, and knowing the defendant was placing valuable improvements on the property, waited more than twelve years to assert any claim thereto. We think his Honor properly held them to be guilty of laches and are thereby estopped from claiming any right, title Or interest in the property.
The judgment of the court below, in so far as it holds the defendant to be the owner and entitled to the possession of the 7'0-acre tract of land, will be upheld.
The plaintiffs, however, excepted to the refusal of the court below to" render judgment in their favor for rent. The plaintiffs are not entitled' to rent for the use and occupancy of the 70-acre tract"of land. But, in' [688]*688view of the defendant’s disclaimer of title to the 26.5-acre tract of land, which he had occupied for more than seven years, and the finding of fact by the Referee that the reasonable rental value thereof was $100.00 per year for three years next preceding the institution of this action, and to which finding the defendant did not except, we think the plaintiffs are entitled to judgment for such rents. G-. S., 1-341.
DefbnbaNts’ Appeal IN Oliver v. Hughes, et als.
It appears from the record that the plaintiff- herein went into possession of the 26.'5-acre tract of land under the erroneous impression that his mortgage covered both the 70-acre tract and the 26.5-acre tract. But when it was discovered in 1944 that the foreclosed mortgage did not cover both tracts of land, the plaintiff elected to institute an action to foreclose the deed of trust held by him on both tracts, rather than to undertake to assert title otherwise.
The defendants, who are heirs at law of John W. Hughes, contend that if the plaintiff is entitled to foreclose his deed of trust, as provided in the judgment entered below, he must account for rents and profits while he was in possession of the respective tracts of land. This contention cannot be sustained on this record, for the reason no such relief is sought by them in their pleadings. It will also be noted that these defendants made no tender, nor do they allege a willingness or desire to exercise their right to redeem the lands conveyed in said deed of trust.
We have carefully examined the exceptions of the defendants bearing ■ on the plaintiff’s right to foreclose his deed of trust in the manner set forth in the judgment below, and they are without merit. The court below had the power to order the sale of the respective tracts of land included in the deed of trust, in the inverse order of alienation. Brown v. Jennings, 188 N. C., 155, 124 S. E., 150; Berry v. Boomer, 180 N. C., 67, 103 S. E., 914.
The plaintiffs further except to the ruling of the court below, taxing them with the costs in the case of Hughes et als., v. Oliver, and to the taxing of the costs against the defendants in the case of Oliver v. Hughes, et als.
The eases were consolidated for trial and referred by consent of all parties. The plaintiffs in the case of Hughes, et als., v. Oliver having been adjudged the owners of the 26.5-acre tract of land in controversy and having established their right to certain rents by reason of the occupancy of said land by the defendant, their exception is not without merit.
We think the costs in the Superior Court in the case of Hughes, et als., v. Oliver, should be divided equally between the plaintiffs and defendant; and the costs in the case of Oliver v. Hughes, et als., should be divided equally between the plaintiff and the defendants John W. Hughes, and others, heirs at law of John W. Hughes, deceased.
[689]*689The case of Hughes, et als., v. Oliver is remanded for judgment in accord with this opinion.
The ease of Oliver v. Hughes, et als., will be affirmed except as modified herein.
The ease of Hughes, et als., v. Oliver—Error and remanded.
The case of Oliver v. Hughes, et als.—Modified and affirmed.