#### W. B. MOORE v. A. Q. MOORE and Wife, L. B. MOORE et al.

(Filed 23 December, 1909.)

1. Lands — Possessory Action — Title—Death of Party — Abatement.

An action for the possession of land involving title does not abate by the death of a party except by order of the court. Revisal, sec. 415.

2. Same — Order of Court — Next Term — Criminal Term — Summons— Service — Reasonable Time.

In an action for possession of lands involving title, it appeared that the plaintiff claimed under a deed from the defendant and his wife, and that, the death of the defendant being suggested, the court ordered that his heirs be made parties defendant. No process or notice being issued or given under this order, the court again ordered that notice issue or the action abate at the next term. A criminal term intervened, but before the next civil term, all the heirs, at least those resident within the State, had been served, and this within two years from the date of the death of their ancestor. Held, (1) the second order, by fair intendment, meant that the action should abate if process on the heirs was not served before the next civil term; (2) the defendants’ motion for abatement should be denied, it appearing that the service upon the heirs was made within two years after the death of the ancestor, within the time fixed by the order, and that the mother of the heirs continued to be a party defendant. Bogerson v. Leggett, 145 N. C., 7, cited, approved and distinguished."

3. Deeds and Conveyances — Mutual Mistake — Color.

When defendants, the heirs at law of plaintiff’s grantor, have failed to set aside his deed to plaintiff for mistake, which admittedly covered the locus m quo, the deeds incident to the title become the property of the plaintiff, the grantee, as muniments of his title, and thereafter the occupation of the grantor, or his heirs, even if adverse, would be without “color.”

4. Deeds and Conveyances — Mutual Mistake — Parties — Beneficial Owner — Declarations—Evidence—Res Gestae.

• A. conveyed by deed to C. certain of his lands, and 0. conveyed the same to W., the plaintiff, who brings his action against A. for possession, the action involving title, and the death of A. being suggested, his heirs are made parties defendant. Held, (1) if properly pleaded, the equitable defense is available that, by mutual mistake, the land in controversy was embraced in the description of the deed from A. to O.; (2) C. was not a necessary party as he had conveyed all his interests in the land to plaintiff, and especially when he was practically the beneficial owner of the land from the beginning; (3) the declarations of the plaintiff that there was a mistake in the deed from A. to C. as contended for by the defendants, are competent evidence, being by the principal party in interest, made in the treaty or purchase and directly relevant to the issue. So far as it appears in this case, it was a pertinent fact in the res gestae.

*556Appeal from Joseph 8. Adams, J., May Term, 1909, of HeN-DERSON.

Civil action, to recover possession of a piece of land. Summons in tbe action was issued 18 August, 1902, by W. B. Moore, present plaintiff, against A. Q. Moore and wife, L. B. Moore, grantors in tbe deed to A. C. Moore. Some time in 1906, tbe precise time not stated in tbe record, tbe death of A. Q. Moore was suggested and an order -was made tbat bis beirs at law be made parties defendant. No process was issued or notice given under this order; and at November Term, 1907, an order was entered tbat notice issue or action abate at tbe next term. Prior to tbe next civil term, process was issued and some of tbe defendants served, and thereafter publication was made for certain other defendants who were nonresidents. On these facts tbe defendants moved tbat tbe action abate as to tbe beirs of A. Q. Moore. Motion denied, and defendants excepted.

Tbe plaintiff claimed tbe land in controversy under a deed from A. Q. Moore and wife, L. B. Moore, to O. E. Moore, in October, 1887, purporting to convey tbe land described in tbe complaint and deed from O. E. Moore to W. B. Moore, plaintiff, purporting to convey same land, and offered said deeds in evidence, and it was admitted tbat said deeds embraced tbe land.

Defendants answered, denying plaintiff’s title, set up tbe statute of limitations, and, for a further defense, alleged tbat A. Q. Moore and wife bad only bargained and sold to O. E. Moore and W. B. Moore .a tract of land, tbe correct description of which, in terms, and by tbe contract between them, did not embrace tbe land in controversy, and, by mistake of tbe parties, tbe deed in question was so drawn as to include said land; and on tbe trial defendants offered, with other evidence tending to show tbat tbe contract was as defendants claimed, certain statements of plaintiff claimed to be relevant to tbe issue.

Tbe court excluded tbe testimony offered, on tbe ground tbat C. E. Moore, tbe grantor in tbe original deed, was not a party or present at tbe making of tbe statement, and, second, because tbe evidence was not connected with tbe execution of tbe deed in which tbe alleged mistake was alleged to have occurred, and defendants excepted. Tbe court further held that on tbe testimony neither party bad ripened title by possession, and defendants again excepted. Verdict for plaintiff, judgment, and defendant excepted and appealed.

H. B. Stevens and Charles F. Toms for plaintiff.

0. V. F. Blythe for defendant.

*557Hoke, J.,

after stating the case: Under our statute (Revisal, sec. 415), where the right survives, an action does not abate by the death of a party, except by order of the court (Burnett v. Lyman, 141 N. C., 500); and while we have held in Rogerson v. Leggett, 145 N. C., 7, that a failure of tbe court to make such order for a period of eight years or more, and when there was nothing to indicate that the heirs of deceased were aware that an action was pending against them, was such an abuse of legal discretion as to constitute error, and might be available in some instances as a defense, the principle does not apply, we think,' to the facts presented here, when the mother of these heirs was and continued to be a party of record, and these heirs themselves, or all who were resident in the State, were served within two years from the death of their ancestor and within the time fixed by order of the court; for we hold that the order which was made in this ease, by fair intendment, meant the next civil term, and did not contemplate the intervening criminal term of the court; and there was no error, therefore, in denying defendants’ motion for abatement of the action.

Nor was there any error in the ruling of the trial court as to the statute of limitations. Unless there was a mistake in the deed from A. C. Moore and wife, their title passed, for it is admitted that the deed, as it stands, includes the land in controversy. If the title was conveyed, the deeds incident to the title became the property of the grantee as muniments of his title, and thereafter the occupation of the grantors, even if adverse, was, so far as appears, without color and did not exist for the length of time required. In fact, it was not shown to exist for seven years, even if there had been color.

We are of opinion, however, that there was error in holding that, in order to make the equitable defense set up by defendants available, it was necessary that' O. E. Moore, the grantee in the deed assailed, should be made a party. It is well established that an equitable defense of this kind in impeachment of plaintiff’s claim is available if properly pleaded. Finishing Co. v. Ozment, 132 N. C., 839; Farmer v. Daniel, 82 N. C., 153; Stith v. Lookabill, 76 N. C., 465; Ten Broeck v. Orchard, 74 N. C., 409. And, on the facts presented, such defense is available against W. B. Moore, the present plaintiff. The'evidence shows that the original contract was made with him, the bond for title was so drawn, and he has all along been the owner of the beneficial interest or the greater portion of it. More than this, it appears that 0. E. Moore has conveyed all the interest he had in the land to W. B. Moore, the present plaintiff, and, as between him and the de*558fendants, tbe entire interest to be affected by tbis litigation is now before tbe Court. It may be that C. E. Moore is a desirable party; that be could be made sucb by order of tbe Court; but be is no longer a necessary party, and all the rights involved in the case can be determined without his presence. Mullins v. McCandless, 57 N. C., 425; Polk v. Gallant, 22 N. C., 395.

In tbis last case it was held, among other things: “That an assignor is not a necessary party to a bill against an assignee when it appears from both bill and answer that all tbe interest of tbe assignee has been transferred.” And, tbis being an issue properly raised, tbe evidence offered by defendants tending to show that W. B. Moore, plaintiff, stated that tbe contract of purchase and tbe deed to 0. E. Moore was only to include tbe land as alleged and contended by tbe defendants should have been received. It was a statement by tbe principal party in interest, made in tbe treaty of purchase and directly relevant to tbe issue. So far as now appears, it was a pertinent fact in the res gestae. Fraley v. Fraley, 150 N. C., 501.

For tbe errors indicated, there must be a new trial of tbe case, and'it is so ordered.

New trial.