#### BUNN v. BRASWELL.

(Filed September 25, 1906).

Consent Judgment — Mortgagor and Mortgagee — Conditional Sale — Statute of Limitations — Petition to Rehear — Assignment of Errors.

1. The language of the consent decree that a final judgment rendered in 1888 by default for land is “so far modified as to declare that the defendant has an equity to -redeem the land,” coupled with the admitted fact of defendant’s prior possession, is strong evidence that the relation of mortgagor and mortgagee existed prior to 1888, and that the decree itself creates by its very terms this relation, and that it does not constitute a conditional sale.

2. Where the mortgagor and those claiming under him have been in continuous possession since the consent decree in 1889, the plaintiff must show some payment or other fact that will bar the running of the statute of limitations.

*1143. It is uimecessaj.y to consider a broadside assignment of error in a petition to rehear, “for that, granting the correctness of every legal proposition laid down by the Court, and that its findings and inferences of fact were supported by the record, yet the conclusion reached by the Court in its opinion is erroneous.”

Pbxitiof by tbe plaintiff to rebear tbis canse, wbicb was decided at tbe Eall Term, 1905, and reported in 139 N. 0., 135.

F. 8. Spruill for tbe petitioner.

Austin & Grcmtham in opposition.

Beown, J.

Tbe petition to rebear tbis case assigns two errors in tbe opinion of tbe Court: 1. Eor that tbe Court in its application of tbe law to tbe facts of tbe case inadvertently added to tbe facts wbicb were agTeed upon in tbe lower Court and upon wbicb tbe Court’s judgment was hypothe-cated, a finding of fact not in tbe record and not actually existing, viz., that tbe relation of mortgagor and mortgagee subsisted between tbe plaintiff and tbe defendant at tbe time of tbe institution of tbe action in ejectment in 1888.

2. Eor that, granting tbe correctness of every legal proposition laid down by tbe Court, and that its findings and inferences of fact were supported by tbe record, yet tbe conclusion reached by tbe Court in its opinion is erroneous.

As to tbe first allegation, tbe learned counsel for tbe plaintiff are themselves inadvertently inaccurate. In tbe well-considered opinion delivered for tbe Court by Mr. Justice Gonnor no finding of fact is made and none “added to tbe facts wbicb were agreed upon in tbe lower Court.” It will be observed upon reading tbe opinion that tbe writer was reciting only tbe contentions of tbe defendant when be stated that tbe declaration in tbe decree of 1889 “that 'the defendant has an equity to redeem tbe land’ shows clearly that tbe relation of mortgagor and mortgagee at that time and theretofore existed between tbe parties, and not that be was by tbe *115judgment given, such equity; that tbe judgment was a recognition. of tbe existence thereof.”

Upon a re-examination of tbe consent decree, we think there is much upon its face to support tbe defendant’s argument. N. W. Boddie bad in 1888- recovered a final judgment by default for tbe land. Why set it aside by consent and substitute in its place such an instrument as tbe decree of 1889 ? It is not likely that Boddie would take such a method of selling to Braswell a tract of land which tbe latter bad never theretofore bad any interest in. Couple tbe language of tbe consent decree with tbe admitted fact of Bras-well’s prior possession, and tbe inference is very strong that the relation of mortgagor and mortgagee existed between tbe parties prior to 1888. Why use tbe words “that' said judgment (of 1888) is so far modified as to declare that tbe defendant has an equity to redeem tbe land” ? Where did tbe defendant get bis equity of redemption which tbe decree says be bad at that time? Tbe plaintiff’s counsel say that tbe decree does not confer any such equity and that tbe defendant never bad it before. This argument is at variance with tbe plain language of tbe decree. Tbe plaintiff contends that tbe decree is a contract to buy tbe land by tbe defendant. Tbe word “redeem” does not mean to “buy.” It means to “buy back,” “to liberate an estate by paying tbe debt for which it stood as security,” “to repurchase in a literal sense.” Black Law Diet., 1008. It therefore follows that tbe defendant could not have an equity to redeem tbe land unless be previously owned it. This argument is not based upon any agreed facts, but upon tbe context of tbe decree itself. If tbe decree was intended to constitute a conditional sale of land which tbe defendant did not previously own, then tbe words we have quoted are very much out of place. “Tbe right of redemption is an inseparable incident to a mortgage ; while in tbe case of a conditional sale tbe rights of tbe vendor are *116those expressly reserved to him by the agreement, and those only.” Thomas on Mort. (2 Ed.), sec. 32.

We do not deem it necessary to consider the second ground of error in the petition to rehear. It is a broadside fired at the judgment of the Court and points out no material point overlooked and no material fact that escaped the Court’s attention, and cites no new authority that is antagonistic to the conclusions reached by the Court, viz., first, that the language of the decree is strong evidence that the relation of mortgagor and mortgagee existed prior thereto, and, second, that the decree itself creates by its very terms the relation of mortgagor and mortgagee. Wilcox Heirs v. Morris, 5 N. C., 117. It therefore follows that the mortgagor, and those claiming under him, being continuously in possession since the decree, the plaintiff must show some payment or other fact that will bar the running of the statute of limitations.

Petition Dismissed.