#### JOYNER v. FUTRELL.

(Filed October 25, 1904).

1. LIMITATIONS OF ACTIONS — Remainders—Estates—Adverse Possession.

The statute of limitations does not run against a- remainderman until the death of the life tenant.

2. JUDICIAL SALES — Sales—Executors and Administrators.

A confirmation of a sale of the estate of a decedent is a condition precedent to the exercise by an executor of the right to convey title.

AotioN by M. F. Joyner against C. Futrell, beard by Judge W. B. Council and a jury, at January Term, 1904, of tbe Superior Court of Northampton County. From a judgment for tbe plaintiff tbe defendant appealed.

Peebles & Harris and Gay & Midyette, for tbe plaintiff.

Winborne & Lawrence and W. E. Daniel, for tbe defendant.

WalKee., J.

This is an action to recover real property. Both parties claim, either mediately or immediately, under tbe will of James McDaniel, tbe land in controversy known as tbe “eastern portion of the Marsb Tract” devised in tbe first item of tbe will to A.' J, Harrell, trustee for Rebecca Blythe, during ber life and at ber death it was devised to James Bryant, and tbe other portion of tbe tract was devised in tbe second item to M. F. Joyner, tbe plaintiff. In tbe third item it is/ provided that if Bryant or M. F. Joyner, tbe plaintiff, should die without heirs of bis body, tbe survivor should have tbe share of tbe one so dying. Bryant died without heirs of bis body and Rebecca Blythe died *302afterwards and about four years before this action commenced. Tbe defendant claims the land by virtue of a sale made under an order of the Court in a proceeding brought in the late' County Court- by A. J. Harrell, executor of James McDaniel, against the devisees and heirs at law for the sale of the land for assets, and mesne conveyances connecting him with the title of the purchaser at that sale, and he contends that the said proceeding and sale divested the plaintiff of the title he acquired under the will, which was passed to the purchaser at the sale and which has been vested in the defendant by the mesne conveyances. So that the plaintiff is entitled to recover the possession of the land in this case unless that proceeding and the sale were valid and must have the effect of defeating his title and consequently his right of possession.

The evidence in regard to the proceeding to sell the land for assets is very meager. It consists of (1) an order of sale by which license is given to the executor to sell the real estate of his testator to pay the debts of the estate; (2) a report showing that he had sold the land to James Bolton for $125 and taken bond and security for the purchase-money, as required to do by the order of the Court; (3) an entry on the docket of the Court as follows: “Northampton County. September Court, A. D. 1861. The foregoing report of the account of sale of the land belonging to the estate of James McDaniel, deceased, is returned in open Court on oath by A. J. Harrell, executor, and is ordered to be certified and recorded”; (4) a deed from the executor to Godwin M. Powell for the land, in which it is recited that it was sold under an order of the Court and that Powell became the purchaser. There is no affirmative proof that the plaintiff was made a party to the proceeding by the service of process, nor is there any evidence that the sale was ever confirmed by the Court. It also appeared from the documentary *303evidence that tbe executor of McDaniel bad filed bis petition at December Term, 1867, of tbe County Court in a proceeding against McDaniel’s lieirs and devisees for a final settlement of bis executorship, and his final account showed that be bad received as executor a certain gross sum, but it did not appear (unless by inference) that tbe purchase-money of tbe land was a part of that sum. In that proceeding tbe executor’s final account was approved and confirmed.

It was admitted that tbe defendant and those under whom be claims have been in the adverse possession of tbe land since 1867 claiming tbe same by virtue of tbe said sale and deed of tbe executor. Tbe adverse possession of tbe defendants under color cannot avail them for tbe purpose of ripening their title. It is an elementary principle that tbe statute of limitation does not run against any person until bis right of action has accrued, and in this case it did not accrue to tbe plaintiffs, as against tbe defendants, until' the death of the life tenant, Rebecca Blythe, which occurred on May 15, 1900. So long as she lived they bad no right of possession upon which to base a suit for tbe recovery of the land. Everett v. Newton, 118 N. C., 919; Woodlief v. Wester, at this term, 136 N. C., 162.

Tbe only other question which we need consider, that is, as to tbe validity of tbe deed of the executor and its sufficiency to pass tbe title, without any confirmation of tbe sale by tbe Court, is equally well settled. This Court, and all courts, we believe, having jurisdiction to pass upon judicial proceedings for tbe sale of land have uniformly held that it is necessary that tbe sale be reported to tbe. Court, and that it be confirmed before tbe commissioner or other person appointed by tbe Court to make tbe sale can have any power to make title to the purchaser. Tbe commissioner is invested with a naked power which must be exercised under tbe supervision and control of tbe Court, and he has no *304authority to act save that which he derives from the Court under its order or judgment. The bidder at a judicial sale, on the other hand, acquires no right before the sale is reported by the officer and the sale is confirmed by the acceptance of his bid. Until then the bargain with him is not complete and he acquires no title of any kind to the land. He is regarded as a mere preferred proposer until he has been accepted by the Court as the purchaser, and every bidder is presumed to know, because he should know, that his bid is made subject to the condition of its acceptance or rejec-, tion by the Court. A formal direction to make title is not always necessary to confer upon the commissioner the power to convey the land to the purchaser by deed, but a confirmation of the sale cannot be dispensed with in any case, unless perhaps in some way it has been waived. It is a condition precedent to the exercise of the right to convey the title. This principle has been settled by numerous authorities. Bost, ex parte, 56 N. C., 482; Brown v. Coble, 76 N. C., 391; Mebane v. Mebane, 80 N. C., 34; Latta v. Vickers, 82 N. C., 501; Foushee v. Durham, 84 N. C., 56; Miller v. Feezor, 82 N. C., 192; Attorney-General v. Navigation Co., 86 N. C., 408; Dickerson, ex parte, 111 N. C., 108; Vanderbilt v. Brown, 128 N. C., 498; Mason v. Osgood, 64 N. C., 467; Rorer Jud. Sales, sec. 122.

In this respect a judicial sale differs from one made by an individual or a sheriff under an execution in his hands. When confirmation of a judicial sale takes place the purchaser acquires an equity to call for the title upon payment of the purchase-money (Farmer v. Daniel, 82 N. C., 152), and when the transaction is completed by confirmation and conveyance of the title, it all relates back to the day of sale, and the purchaser is invested with the title as of that time. Rorer, supra, 122; Vass v. Arrington, 89 N. C., 10. As the sale under which the executor made the deed had not been *305confirmed by tbe Court, so far as appears in this case, tbe act of tbe executor in attempting to pass tbe title was without any authority and void. It follows, therefore, that tbe defendant has acquired no title or right to tbe possession of the land under tbe executor’s deed, and, as that is his only source of title, be cannot successfully resist tbe recovery of tbe plaintiff in this case. We have found nothing in tbe record in tbe nature of a recital, nor any facts from which we can draw any inference or presumption that will change this result. Tbe long possession of tbe defendant, and those under whom be claims, does not furnish any reason for presuming anything in favor of the regularity of tbe proceeding and tbe validity of bis deed, as the plaintiff was never put to bis action or required to assert bis right to tbe possession of tbe land until a few years ago. But while tbe defendant must lose in this suit we think be may yet apply to tbe Court in tbe other proceeding, which is still pending, and obtain relief, provided that, upon tbe facts as they may be made to appear to tbe Court, be is entitled to it. If be desires to pursue that course be may, as ancillary to bis remedy, move tbe Court for a stay of tbe writ of possession in this case until that matter can be beard and determined. We are not intimating an opinion upon tbe merits of such an application in any of its stages, but what has been said is intended to show that tbe defendant’s remedy is not in this action but in tbe proceeding for tbe sale of tbe land. Lord v. Beard, 79 N. C., 5; Lord v. Meroney, 79 N. C., 15.

With every disposition to sustain proceedings in tbe County Courts and courts of equity, where tbe practice and procedure seldom conformed strictly to tbe law because of tbe loose methods obtaining in them, we are unable to dis*306cover any ground on which we can uphold the proceeding upon which the defendant relies in this case.

The ruling and judgment of the Court below were correct upon the facts as they appeared at the trial.

No Error.