#### BUNN v. BRASWELL.

(Filed September 26, 1905).

Mortgagor and Mortgagee — Possession by Mortgagor — Statute of Limitations — Consent Judgments.

A consent judgment providing that the defendant has an equity to redeem the land upon the payment to the plaintiff of $600, on or before the first day of October next, and if this payment is made on or before that day the plaintiff will convey said land to the defendant, but in ease of failure to pay within the time limited, the defendant shall stand absolutely debarred and foreclosed of and from any and all equity or other estate, established the relation of mortgagor and mortgagee, and notwithstanding the provision of strict foreclosure that relation continued to exist after the day of forfeiture and under section 152 (3) of The Code, ten years’ possession of the defendant, after default, bars the plaintiff.

ActioN by Anua B. Burnt against L. 0. Braswell and others, heard by Judge ~W. B. Allen, upon an agreed statement of facts, at the May Term, 1905, of the Superior Court of Nash County.

At the October Term, 1888, of the Superior Court of Nash County, N. W. Boddie recovered judgment by default against Exum Braswell, adjudging him to be the owner and entitled to the possession of the tract of land in controversy. At the Spring Term, 1889, upon a motion to set the judgment aside, it was, by consent, adjudged “that said judgment is so faT *136modified as to declare that tbe defendant bas an equity to redeem the land described in the complaint upon the payment to the plaintiff of six hundred dollars and interest from date, and the cost of this action, on or before the first day of October next, and if this payment is made in full on or before, that day, the plaintiff will convey the said premises to the defendant, but in case of his failure to make such payment within the time limited, the defendant shall stand absolutely debarred and foreclosed of and from any and all equity or other estate or interest in the premises. The former judgment, however, remains in full force so far as it declares that the plaintiff is the owner and entitled to the possession of said land, and if necessary the clerk will issue a writ of possession.” Exrun Braswell remained in possession until his death, .when the defendant who succeeded to such possession and rights as he had, continued therein until the institution of the action and other proceedings set forth in the transcript. Upon the death of N. W. Boddie, his rights in respect to said land vested in the plaintiff. On the 14th day of April, 1900, a civil action was instituted in the Superior Court by Mrs. L. C. Boddie, who then represented the title of N. W. Boddie, deceased, against Exum Braswell. In the complaint filed therein the plaintiff avers ownership in herself and wrongful possession by defendant. At the Spring Term, 1900, judgment by default was entered. At the Spring Term, 1901, the heirs at law of Braswell were permitted to come in and make themselves parties defendant; the judgment was set aside and defendants allowed to file answer. They answered, averring that the judgment of Spring Term, 1889, in the original action, was a final settlement of the rights of the parties, and that the terms thereof were complied with by Exum Braswell, by paying the sum therein adjudged to be due N. W. Boddie. They also pleaded the ten years’ statute as a bar to the action. On the 29th day of November, 1901, upon application of the plaintiff, the *137clerk of the Superior Court of said county made an order directing that a writ of assistance issue upon the judgment of Spring Term, 1889; pursuant thereto such writ was issued to the sheriff of said county, commanding him to eject the defendants from said land and put the plaintiffs in possession thereof. The defendants thereupon made a motion before the said clerk to withdraw said writ for that more than ten years had elapsed since the rendition of said judgment— that no execution had issued thereon — that no notice had been given of the motion for the issuance of said writ; that the judgment was barred by the statute of limitations. The plaintiffs, respondents to said motion, filed answer to the affidavit upon which the motion was made, admitting the matters of record and denying that the possession of the defendants or their ancestor was or had been adverse to the plaintiffs. The said answer set forth “that the relation established by the judgment (of Spring Term, 1889,) between the plaintiff and defendant was that of mortgagor and mortgagee, with the mortgagor in possession and clothed with the right to redeem under said decree of strict foreclosure.” That the heirs of Exum Braswell took subject to the rights of N. W. Boddie. The clerk withdrew the writ, and plaintiff appealed to the judge. The original action and appeal coming on for hearing, by consent, the two records were consolidated and heard at the May Term of Nash Superior Court, where judgment was rendered for plaintiffs, to which defendants excepted and appealed. No evidence of payment of the $600 was introduced.

F. 8. Spruill for the plaintiff.

Austin & Grantham for the defendants.

CoNNOR, L,

after' stating the facts: There is nothing in the complaint filed in the action of Fall. Term, 1888, to indicate the source or quality of the title of N. W. Boddie. *138The judgment of Spring Term, 1889, being by consent, is to be construed as any other contract of the parties. It constitutes the agreement of the parties made a matter of record by the court at their request. Gaslon J., in Wilcox v. Wilcox, 36 N. C., 36, says that a consent judgment “is the decree of the parties.” Dillard, J., in Edney v. Edney, 81 N. C., 1, says: “A decree by consent is the decree of the parties put on file with the sanction and permission of the court; and in such decrees the parties acting for themselves may provide as to them seems best concerning the subject matter of the litigation.” Vaughan v. Gooch, 92 N. C., 524.

The judgment is therefore to be construed in the same way as if the parties had entered into the contract by writing duly signed and delivered. The plaintiff in her answer to the motion to withdraw the execution contended that the relation established between the parties, by the judgment, was that of mortgagor and mortgagee — the defendant being the mortgagor in possession. The defendants in this court make the same contention, while the plaintiff here insists that the judgment established the relation of vendor and vendee— the vendee being in possession. The learned counsel calls our attention to the provision that the plaintiff is declared' to be the owner of the land, and upon payment of the amount fixed is directed to convey it to the defendant. This, he insists, excludes the idea that the defendant was the owner and the plaintiff the mortgagee. There is certainly much force in this view. On the other hand, the defendant’s counsel, in their well considered brief and excellent oral argument, contend that the declaration that the defendant “has an equity to redeem the land,” shows clearly that the relation of mortgagor and mortgagee at that time and theretofore, existed between the parties, and not that he was, by the judgment, given such equity; that the judgment was a recognition of the existence thereof. They further insist that the term “equity to redeem” is well defined and applicable to *139no other relation than that of mortgagor and mortgagee. From this position counsel contend that, notwithstanding the provision in the judgment that upon failure to pay the amount fixed by October 1, 1889, the defendant shall be forever debarred and foreclosed of any equity, etc., in said lands, the relation continued to exist and that after default the possession of the defendant continued to be that of mortgagor and not tenant, and that at the end of ten years the plaintiff was barred by subsection 3, section 152 of The Code. This defense is not based upon the idea that the possession of Braswell was adverse to the plaintiff. It is conceded that the authorities cited by plaintiff in her answer to the motion to withdraw the execution, sustain the position that the possession of the mortgagor is not adverse to the mortgagee. Parker v. Banks, 19 N. C., 480. The plaintiff contends that after default, the defendant was the tenant of' the plaintiff, at sufferance and that, until by some unequivocal act on his part, the character of his tenure could not be changed. We do not think that in any aspect of the case the question of adverse possession arises. It has been found difficult to define, satisfactorily, the tenure of the mortgagor in possession. Rodman, J., in Jones v. Hill, 64 N. C., 198, said: “If a mortgagor remains in possession after the forfeiture of the property, he remains only by permission of the mortgagee. In such case, the mortgagor has sometimes been called a tenant at will or sufferance, and sometimes a trespasser; but he is properly neither; his position cannot be more accurately defined than by calling him a mortgagor in possession, but he may be ejected at ,any time by the mortgagee without notice.” Do the terms of the judgment of Spring Term, 1889, establish the relation of mortgagor and mortgagee ? In discussing the character of an instrument involving the same question, Ruffin, C. J., said: “The case is not free from doubt upon the first point. The character of the conveyance is to be determined by the intention of the parties, and if that, *140however ascertained, was that it should operate as a security, the court so regards it and the debtor will be entitled to redeem.” Gillis v. Martin, 17 N. C., 472.

In Wilson v. Weston, 57 N. C., 349, the deed provided, “The said Wilson shall have the privilege of redeeming * * * by paying the said Weston * * * the said sum of $35, on or before the expiration of six months.” Ruffin, J., said: “There may be in some cases much difficulty in distinguishing between a mortgage and a conditional sale; but there are very decisive evidences of the true character of this transaction. The deed of itself, imports prima facie a security and not a sale — by the proviso for the privilege of redeeming the negroes, which, between these parties, is equivalent. to a technical condition on which an equity of redemption would arise, as denoting the intent of the parties.” Mason v. Hearne, 45 N. C., 88; Robinson v. Willoughby, 65 N. C., 520, Rodman, J., saying: “If a transaction be a mortgage in substance, the most solemn engagement to the contrary, made at the time, cannot deprive the debtor of his right to redeem; such a case being on grounds of equity an exception to the maxim fmodus et conventio vincunt legem.’ It is to be regretted that for the purpose of aiding us in construing the terms of the contract, or agreement, of the parties, as embodied in the consent judgment, we have no evidence or information in regard to the status of the title prior to the judgment of Fall Term, 1888. The defendants, in their affidavit made before the clerk, say that Exum Braswell, their ancestor, owned and had possession of the land since 1833. Whether Mr. Boddie ever owned the land or how he acquired a right to it, or to have $600 paid him as a condition upon which he was to convey it to Braswell, does not appear. The term “right to redeem,” is appropriate to express the right, interest or estate of a mortgagor, and not a vendee. When we speak of the interest of one in, or right to, real estate, as an “equity of redemption,” which is synonymous with “right *141to redeem,” we understand that reference is made to tbe status of a mortgagor — not a vendee. We are also impressed with tbe expression that tbe defendant. “has a right to redeem the language clearly conveys tbe idea that some such relation, in respect to tbe land, then existed between the parties. Tbe judgment of Fall Term, 1888, is not inconsistent with tbe suggestion that tbe plaintiff’s title was not absolute, but subject to tbe right to redeem. The judgment of Fall Term, 1888, and tbe consent judgment when read to-, gether, as they should be, to ascertain the intention of tbe parties, is consistent with the contention of the defendant. Watkins v. Williams, 123 N. C., 170. Tbe mortgagee is tbe owner, and in an action for that purpose entitled to the possession of tbe mortgaged estate. Upon a careful consideration of the terms of tbe consent judgment, in tbe light of tbe authorities, we are of the opinion that tbe relation of mortgagor and mortgagee was recognized, or at least established. The plaintiff insists that, conceding this to be true, the judgment expressly declares that upon failure to pay tbe debt on or before October 1, 1889, tbe defendant shall be barred and foreclosed of bis right or equity to redeem. That by this provision in tbe judgment there was a strict foreclosure. That after the day fixed, the default of the defendant deprived him of any and all interest in the land. In that view his possession was either adverse, in which case the plaintiff would not be barred until the expiration of twenty years or the possession'was permissive, and no length of time would bar the entry of the plaintiff. Treating the judgment as the agreement of the parties, in what respect does it differ from a common law mortgage, in which it is always provided that upon default “the said deed and every part thereof shall remain in full force and effect?” It was to prevent the hardship growing out of the forfeiture wrought by the terms of the deed in a'court of law that equity came to the relief of the mortgagor and permitted him to redeem, notwithstand*142ing tlie forfeiture, by paying 'the' debt within a reasonable time. In this way the right to redeem came into existence and from this purely equitable right — or right to relief in equity- — was evolved the mortgagor’s equity of redemption which came to be and is now recognized as an estate or interest in the land, subject to sale under execution, to dower and many other incidents of a legal estate in land. Courts of equity, for the purpose of preserving without impairment this right to redeem notwithstanding the forfeiture, refused to recognize or enforce agreements, made at the time of the execution of the mortgage, releasing or in any manner depriving the mortgagor of his equity. Erom this refusal of the chancellors, the maxim came into existence, “Once a mortgage always a mortgage,” which has been strictly adhered to by the courts in England and this country, so that it is a well settled doctrine that by no agreement made by the parties can the equity of redemption be destroyed. While in exceptional cases the court would render a decree of strict foreclosure, it was only done where it clearly appeared that the rights or interest of the mortgagor were not injuriously affected. Ruffin, C. J., in Gillis v. Martin, supra, after holding that the instrument before the court was a mortgage, said: “But no agreement at the time of the contract, that the purchaser shall, in default of the debtor, become absolute owner even at an increased price, is permitted by the court to bar redemption, if the subject was once redeemablé.” The principle is strongly stated by Mr. Justice Field in Peugh v. Davis, 96 U. S., 332: “It is also an established doctrine that an equity of redemption is inseparably connected with a mortgage; that is to say, so long as the instrument is one of security, the borrower has in a court of equity a right to redeem the property upon payment of the loan. This right cannot be waived or abandoned by any stipulation of the parties made at the time, even if embodied in the mortgage. This is a doctrine from which a court of equity never deviates. *143Its maintenance is deemed essential to tbe protection of tbe debtor, wbo, under pressing necessities, will often submit to ruinous conditions, expecting or hoping to be able to repay tbe loan at its maturity and thus prevent tbe condition from being enforced and tbe property sacrificed.” In Macauley v. Smith,, 132 N. Y., 524, Landon, J., said: “Tbe agreement to turn a mortgage into an absolute deed in case of default is one that finds no favor in equity. Tbe maxim £once a mortgage always a mortgage’ governs tbe case.” In Jones on Mortgages, vol. 1, section 251, it is said: “Generally, every one may renounce any privilege or surrender any right be has; but an exception is made in favor of debtors wbo have mortgaged their property, for the reason that their necessities often drive them to make ruinous concessions in order to raise money.” This court has always rigidly enforced tbe maxim invoked by tbe defendants. Ruffin, C. J., in Fleming v. Sitton, 21 N. C., 621, speaking of tbe parties in foreclosure suits, says: “Of late years a beneficial practice has gained favor until it may be considered established in this country not absolutely to foreclose in any case, but to sell tbe mortgaged premises and apply tbe proceeds in satisfaction of tbe debt.” Jones on Mortgages, section 1538 et seq. Treating tbe consent judgment as tbe agreement of tbe parties rather than tbe judicial determination of their rights, we are brought to tbe conclusion that, notwitbsanding the provision of strict foreclosure, tbe relation of mortgagor and mortgagee continued to exist between them. The question next arises whether the plaintiff is barred by tbe statute of limitations. Prior to Tbe Code, a presumption of abandonment arose which precluded a mortgagee from maintaining a bill to foreclose a mortgage after ten years from default, when tbe mortgagor was permitted to remain in possession, making no payment on tbe debt, Brown v. Becknall, 58 N. C., 423, because, as said by Pearson, C. J., “One wbo sleeps on bis right for ten years either has arranged it in some way or ought to lose it *144because of bis negligence.” By section 152, subsection 3, an action to foreclose a mortgage is barred after ten years from tbe forfeiture, wben tbe mortgagor bas been in possession of tbe property. Tbe condition wbicb formerly raised a presumption of abandonment, now constitutes an absolute bar to tbe enforcement of tbe mortgage. It would seem, therefore, that tbe plaintiff can neither have a writ of possession upon tbe consent judgment nor maintain an action of ej'ectment for tbe land. It may be that tbe plaintiff may be able to show a payment on tbe debt or other recognition of it, preventing tbe operation of tbe statute. Tbe case was beard by His Honor upon tbe record. Tbe judgment must be reversed and tbe case remanded with permission to tbe plaintiff, if so advised, to amend her complaint by asking for a decree of foreclosure by a sale of tbe property. Tbe defendants may then interpose such defenses as they may be advised, so that tbe rights of tbe parties may be settled in accordance with this opinion. It is so ordered.

Error.