#### CHARLES WILLIAMS, guardian of JULIA F. PARROTT, formerly JULIA BIZZELL; GEORGE F. PARROTT et al. v. THE ADMINISTRATOR AND HEIRS AT LAW OF DUNCAN McFADYEN, deceased.

(Filed 10 October, 1907).

1. Vendor and Vendee — Lands—Vendor’s Lien — Judgment, Interlocutory — Limitation of Actions — In Personam.

In an action to enforce a vendor’s lien, where a definite indebtedness is declared and judgment-therefor entered and foreclosure by sale decreed, such judgment is final between the parties as to the amount of indebtedness so adjudicated; but, as to all subsequent questions arising as incident to the sale, the occupation and possession of the property by the parties, the collection and distribution of the proceeds, and the like, the decree, from its very- nature, is interlocutory, and the cause is still pending, and the ten-year statute of limitations, as to judgments (Revisal, sec. 391), has no application. But, in proper instances, on 'plea of the statute properly entered, the judgment could no longer be enforced in personam.

2. Same — Procedure—Motion in the Cause — independent Action.

While an independent action, instituted and prosecuted as such, will not be treated as a motion in the cause, yet when the pleadings are called complaints and answers, but are, in fact, in the nature of affidavits in an action where it is evident, from the lierusal of the record and papers, that all notices issued and affidavits were in the pending - cause, and properly treated by the parties as a proceeding in that cause, and no new action was entered, the proceedings will be regarded as a motion in the cause pending.

*157MotioN in tbe canse, beard and determined before Long, J., at May Term, 1907, of tbe Superior Court of Sampson County.

It appears from facts found by bis Honor at tbe bearing below that, in September, 1894, tbe original summons was issued in tbe name of Charles Williams, guardian of Julia Bizzell (now Parrott), against Duncan McEadyen, to collect tbe purchase money for a tract of land and enforce a vendor’s lien therefor against said McEadyen, who held tbe same under a bond for title, and was in possession, claiming tbe interest in land existent by reason of said bond. At a subsequent term, said Charles Williams, individually, and bis wife, Sarah J. Williams, mother of Julia E. Bizzell, were allowed to join and file a supplemental complaint as claimants of a part of said purchase money. At October Term, 1905, judgment was bad in favor of plaintiffs for tbe amount of the purchase money and “condemning tbe land to be sold” for tbe payment of tbe debt, interest and cost, allowing plaintiffs to bid at tbe sale, and appointing John D. Kerr, attorney of plaintiffs, as “commissioner to make tbe sale pursuant to tbe order of tbe Court, make report of bis proceedings, and retaining tbe cause on tbe docket for further orders and decrees.” No sale was ever bad under this decree, nor was any action taken by tbe commissioner, and tbe cause was continued from term to term, until February Term, 1905, when tbe original defendant, Duncan McEadyen, having died, it was ordered that bis administrator and heirs at law be made parties defendant, which was done by service of summons issued and returnable at a subsequent term. Later, at May Term, 1906, it was ordered that Julia E. Parrott, formerly Julia Bizzell, and her husband, George E. Parrott, be made parties plaintiff, and these parties thereupon filed another complaint, setting out their interest in tbe purchase money and giving a history of tbe cause to date, styling their affidavit a complaint. Defendants filed an affidavit, styled an *158answer, setting forth their statement of the matter, and pleading various statutes of limitations, more especially setting up the ten-year statute, in bar of plaintiffs’ right to relief. The cause then came on for hearing before his Honor, Judge B. F. Long, as stated, who found the facts and gave judgment for plaintiffs, directing sale by a substituted commissioner, as shown by his decree.

Defendants excepted and appealed.

Bouse & Land for plaintiffs.

L. V. Grady and Stevens, Beasley & Weeks for defendants.

IloKE, J.,

after stating the case: We are unable to x>erceive in what way or by what statute of limitations the plaintiffs are barred of their right to enforce the collection of their debt by a sale of the property. The defendants more particularly insist that the demand is barred by the ten-year statute of limitations, applicable to judgments (Revisal, sec. 891), and that this position finds support in a direct adjudication of this Court. McCaskill v. McKinnon, 121 N. C., 194. But we do not think their position is well taken, or that they have correctly interpreted the authority cited as applied to the facts of the present case. Our statute of limitations applies to final judgments, or to judgments or decrees which partake of that nature, and was never intended to affect interlocutory judgments, and in a cause still pending. The action to enforce a vendor’s lien for unpaid purchase money, where the vendee, defendant, is in possession under the bond of title, is in many of its aspects like a proceeding of foreclosure and sale to collect a debt secured by mortgage. Where a definite indebtedness is declared, and judgment therefor entered and foreclosure by sale decreed, such judgment is final as to the amount of indebtedness so adjudicated, and it is final also for purposes of appeal as to all debated and litigated questions between the parties preceding such a decree ; but, as to all subsequent questions arising as incident to *159tbe sale, tbe occupation and possession of tbe property by tbe parties of record, tbe collection and distribution of tbe proceeds, and tbe like, tbe decree is interlocutory and tbe cause is still pending. Knight v. Houghtalling, 94 N. C., 408; Clement v. Ireland, 138 N. C., 136; Null v. Cumming, 155 N. Y., 309; Morgan v. Casey, 73 Ala., 222. This is true in all jurisdictions where tbe cause in express terms is retained for further orders and decrees, and it is true with us from tbe force and effect of such a decree, and whether such a feature formally appears or not, for our decisions are to tbe effect that a decree for absolute sale, without requiring a report to be submitted for further consideration by tbe Court, is irregular and improper and will be set aside on motion. Foushee v. Durham, 84 N. C., 56; Mebane v. Mebane, 80 N. C., 34. Tbe double aspect of this class of decrees, being final in some respects and in others interlocutory, is recognized in tbe authority relied upon by defendant, McCaskill, admr., v. Graham, supra, where it is said by Furches, J.: “The judgment of $754.93 was a personal judgment, and was final. The judgment foreclosing the mortgage was the exercise of the equitable jurisdiction of the Court, and was not what would have been a final decree in equity, and was not so in this case.” And so it is here. The judgment as to the debt is final, and, on plea of statute properly entered, could no longer be enforced as a judgment in personam and against other assets of deceased; but, as a proceeding in rem, the cause is still pending for the purpose of carrying out the provisions of the decree directing a sale of the property and ,an application of the proceeds to the satisfaction of the plaintiff’s debt.

We have it, then, that, as to the questions involved in this motion, the cause is still pending. Plaintiffs are here representing the same interests and asserting the same right claimed and established by the unexecuted and interlocutory decree; and defendants, as successors .and heirs at law of *160Duncan McFadyen, deceased, are parties of record, bound by the terms of tbe decree, subject to tbe orders of tbe Court made in tbe cause, and when nothing bas occurred to put them in a hostile attitude, so as to cause tbe statute to operate for their protection. Tbe Judge below was correct, therefore, in ruling that plaintiff’s right to proceed was not barred by tbe statute of limitations. Inasmuch as some of tbe affidavits offered and used on tbe bearing are styled complaints, and some of tbe notices issued are called summons, we deem it well to note that tbe relief sought by plaintiff on this bearing, tbe cause not having'terminated by final judgment, is only to be bad by motion in tbe cause; and that, according to our present decisions, an independent action instituted and prosecuted as such will not longer be treated as a motion in a pending cause. Long v. Jarratt, 94 N. C., 443; Faison v. McIlwaine, 72 N. C., 312. It is evident here, however, from a perusal of tbe record and papers, that all tbe notices issued and the affidavits filed were in tbe pending cause, and that tbe parties have properly treated them as a proceeding in that cause, and no new action was entered or contemplated.

There is no error, and tbe judgment is.

Affirmed.