The court was right in refusing to enter judgment of nonsuit against the plaintiff. The defendants were not entitled to judgment upon the verdict, so far as it related to the parol trust, as the instruction of the court upon the seventh issue was erroneous, as we have held in the plaintiff's appeal; and a new trial was the necessary result. The motion for a nonsuit was made by defendants, we presume, in order to preserve their rights, if we had decided that there was no error as to *Page 599 that issue. Nor were defendants entitled to judgment upon the verdict, so far as it related to the ninth and eleventh issues, and the fourteenth and fifteenth issues, as the court set them aside, and very properly. The possession of Alfred Andrews was not adverse prior to the sale by the commissioner, F. G. James, in 1901, as a man cannot hold possession adversely to himself. Alfred Andrews owned the land on 21 February, 1900, when he mortgaged it to D. S. Powell, and his possession from that time to the day of the sale by the commissioner was subordinate to the title of his mortgagee. Parker v. Banks, 79 N.C. 480, where it was said by Justice Bynum: "It is well settled that his mortgagor is the tenant of the mortgagee, and, therefore, that his possession is not hostile, or adverse, to the mortgagee." So that, nothing else appearing, except the simple relation of mortgagor and mortgagee, with the former in possession of the land, there was no adverse holding by him, and such a possession could not commence until after the sale, when the title had passed from him, or his heir if he had died intestate, to the purchaser. He must have twenty years adverse possession after that time before the title will be restored to him, and he (524) cannot rely on his former title as color, for he lost that by the sale. He must have acquired a new color after the sale. We discussed this phase of the case fully in Call v. Dancy, 144 N.C. 495, following the decisions in Johnson v. Farlow, 35 N.C. 84, and Wilson v. Brown,134 N.C. 400.
There being no adverse possession by the defendants under color, and none without color sufficient in length of time to vest a new title in defendants, the judge was clearly right in setting aside the ninth and eleventh issues; and as there was nothing left for the fourteenth and fifteenth issues to rest upon, it follows logically that they also should have been set aside.
The last three issues were dependent upon the findings of the jury in response to those preceding them, and were submitted merely to determine the title, as between the parties, according to the verdict on the other issues.
The judge left the tenth issue undisturbed, we presume, for the purpose of ascertaining whether the defendants had been in possession, claiming the land as their own, as bearing on the question of notice to plaintiff of defendant's equity, growing out of the alleged parol trust, the general rule being that possession constitutes such notice. Justice Dillard said, in Heyer v. Beatty, 83 N.C. 289: "The rule in equity undoubtedly is that is to say, he is assumed to take and hold only such interest in the property conveyed as his vendor might honestly dispose of, having due regard to the equities existing against him in favor of others. Adams Eq., *Page 600 151; Webber v. Taylor, 55 N.C. 9; Maxwell v. Wallace, 45 N.C. 251. And the kind of notice spoken of in said rule may be an actual or constructive notice. In this case there is no pretense of actual notice to the plaintiff of the right claimed by defendant, but it is plainly implied, from the terms in which the instruction was asked, that the defendant claimed only to affect the legal title of the plaintiff with a trust from a notice by construction from the mere fact of his possession at the time of the sale. Possession is suggestive of title or right in the possessor, and a prudent man should and would inquire into such apparent right before trading with another; and if he do not, it is but just to the rights of the party in possession to hold the purchaser as affected with notice of the equities in his favor." Many cases have approved this doctrine. Edwards v.Thompson, 71 N.C. 177; Tankard v. Tankard, 79 N.C. 55 (s. c.,84 N.C. 288); Bost v. Setzer, 87 N.C. 187; Johnson v. Hauser,88 N.C. 388; Staton v. Davenport, 95 N.C. 12; Campbell v. Farley,158 N.C. 42. This rule, if it appears, by the facts developed at the next trial, to be applicable, will be available to the party who may benefit by it.
(525) As to Effie Grimes being a purchaser for value, we presume the evidence on that question will be made clearer hereafter. There was some dispute between counsel as to the effect of an entry in the record apparently bearing upon that issue, and a petition for a certiorari was filed for the purpose of having it appear more certainly what the entry meant and how it should be used in the case; but we did not consider it necessary that notice of the petition should be issued, as the matter may be differently presented if the case again comes before us.
We would suggest that the fourth issue be worded so as to submit the inquiry to the jury in this form: "Was Effie Grimes a purchaser for value?" and the eighth issued in this form: "Did she have notice of the equity alleged to have arisen out of the agreement between Alfred Andrews and D. S. Powell?" The issues as to the parol trust, as to Effie Grimes being a purchaser for value and as to her having notice of the equity, should be submitted together and consecutively, as they will now constitute defendant's main if not sole ground for a recovery. We suggest the change in the form of the issued as to plaintiff being a purchaser for value, because in its present from an answer as to what she paid for the land would not necessarily determine whether or no she bought for value, as, in the legal sense of that term, she may have paid more or less than its value for the land.
The court committed no error in refusing to sign the judgment tendered by the defendant, as, in the view we have taken of the case, they were not entitled to it. We may add, though, that if D. S. Powell and R. J. Grimes, the junior encumbrancers, were parties, with F. J. H. P. *Page 601 Bryant, the senior mortgagee, and Alfred Andrews, the mortgagor, to the foreclosure suit, we do not see why D. S. Powell did not acquire a good title, unless Powell made the agreement with Andrews as alleged by defendants and the plaintiff did not purchase from him for value and without notice of it, because, with the consent of the court, D. S. Powell, the junior encumbrancer, could buy, being a party to the foreclosure and the court sold the legal title and all the equities. Whether D. S. Powell could have bought if he had not been a party to the foreclosure suit, but simply the holder of a junior mortgage, we need not decide. We held in Jones v. Williams, 155 N.C. 179, that the holder of a junior mortgage could not be deprived of his rights by a sale under a decree in a foreclosure suit to which he was not a party, and it would seem, without finally deciding the question, as all the facts are not now certainly and definitely before us, that a sale under a foreclosure decree would pass a good title against all who were made parties to the suit; and if this be so, Taylor v. Heggie, 83 N.C. 244, relied on by the defendants, would have no application. We prefer, though, not to give any final or conclusive opinion upon this question until we are better informed as to the facts. It appears, but only be inference from what is stated in the record, that all persons, mortgagor and mortgagee, interested in a foreclosure, were made parties to the suit in which the sale (526) was decreed.
The general result in both appeals is that a new trial must be had, and the issues rearranged so as to eliminate those which have been rendered useless or immaterial by this opinion, and some changed so as to present the true inquiries more clearly and sharply to the jury and in a more compact form.
There was error in plaintiff's but none in this appeal.
No error.
It will, therefore, be certified accordingly to the Superior Court.
In plaintiff's appeal, New trial.
In defendant's appeal, No error.
Cited: Geitner v. Jones, 176 N.C. 544 (2f); Shell v. Lineberger,183 N.C. 443 (2f); Richardson v. Satterwhite, 197 N.C. 612 (1f); Hampton v.Spinning Co., 198 N.C. 239 (1b); Loan Co. v. Warren, 204 N.C. 51 (1d);Ins. Co. v. Dial, 209 N.C. 351 (6g); Steele v. Beaty, 215 N.C. 682, 683 (1d); McCorkle v. Beatty, 226 N.C. 342 (4f). *Page 602