#### THOMAS H. BATTLE, H. E. BREWER, A. P. THORPE, T. L. BLAND and the ROCKY MOUNT SAVINGS & TRUST COMPANY, Trustees of the R. H. Ricks Estate, v. MARY S. MERCER, JOHN R. MERCER, T. C. TILGHMAN and MARGARET M. TILGHMAN, his Wife, ERNEST M. TILGHMAN and MARY M. TILGHMAN, his Wife, LEWIS S. THORPE and RUTH M. THORPE, His Wife, and LENOIR MERCER.

(Filed 19 March, 1924.)

1. Appeal and Error — Motions — Judgments—Excusable Neglect — Findings of Pact — Conclusions of Law.

In passing upon a motion to set aside a judgment for excusable neglect, the findings of the trial judge, upon supporting evidence, are conclusive on appeal, leaving reviewable only his conclusions of law thereon.

3. Same — Statutes—Defendant in Possession of Lands — Title—Pleadings —Bond.

Ordinarily excusable neglect cannot arise out of a mistake of law, and where judgment has been rendered by default final for plaintiff for the failure of defendant to file answer as required by the statute, Public Laws of 1921, eh. 92, sec. 1 (3), the ignorance of the defendant that he was required to file the bond, before answer, required by C. S., 495, when he is in possession of and claiming title to lands, the subject of the action,' is not excusable neglect on his motion to set the judgment *438aside, and not allowable when it appears that the plaintiff was diligent in insisting upon his rights and has done nothing that could be regarded as a waiver thereof.

3. Same — Pari Materia.

C. S., 595 (4) and 495, are in pari materia with Public Laws of 1921, ch. 92, sec. 1 (3), and should be construed together, and the requirements of section 595 (4) must be observed that in an action for the recovery of real property, or for the possession thereof, the defendant in possession must give bond before answer, unless he has been lawfully excused therefrom or the plaintiff has waived his legal right thereto.

4. Pleadings — Statutes—Clerks of Court — Jurisdiction—Time Extended.

Where the summons is served with the copy of the complaint, under the provisions of chapter 92, Public Laws of 1921, the clerk of the Superior Court is not given the power to extend the time of the filing of an answer beyond twenty days after the service has been made.

5. Same — Superior Court — Judge.

Under the provisions of chapter 92, section 1 (18), Public Laws of 1921, the power of the Superior Court judge to allow amendments to pleadings given by C. S., 547, or to allow answer to be filed, C. S., 536, applying also to the defendant in possession of lands and claiming an interest therein giving bond, C. S., 495, is not affected.

6. Tenants in Common — Possession—Title—Bond—Statutes—Pleadings.

A tenant in common in possession claiming title holds such possession for his cotenants by one common title, and in an action to recover the lands, he comes within the meaning of C. S., 495, and must file the bond therein, required, according to law, before answering the complaint.

Appeal by defendants Mary S. and John Mercer, T. C. Tilgbman and Margaret M. Tilgbman from Gormor, J., at October Term, 1923, of Ed&eoombe.

Civil action. Tbe facts necessary for a decision of tbis case are set forth in tbe judgment of tbe court below, as follows:

“Tbis cause coming on to be beard before tbe undersigned, George W. Connor, judge, bolding courts of Second Judicial District, upon appeal oí Mary S. Mercer, John R. Mercer, T. C. Tilgbman and Margaret M. Tilgbman, bis wife, from judgment by default final in favor of plaintiffs rendered by A. T. Walston, C: S. C., 5 November, 1923, and upon motion of some parties to set aside tbe said judgment for tbat it was taken through inadvertence, surprise and excusable neglect; Mrs. Mary S. Mercer, Mrs. Margaret M. Tilgbman and John R. Mercer axipearing in person and by counsel, to wit, O. P. Dickinson, 0. G. Rand and E. B. Grantham, and tbe court having beard evidence and argument, finds tbe following facts:

“1. Tbis is a civil action brought by tbe plaintiffs against tbe defendants for recovery, as stated in tbe complaint, of real property described therein.

*439“2. Summons was issued 29 September, 1923, and verified complaint filed same day. Summons and copies of complaint were personally served upon the defendants Mary S. Mercer and John R. Mercer on 1 October, 1923, and upon Margaret M. Tilghman on 8 October, 1923.

“3. Defendant John R. Mercer filed no appearance, answer, defense bond, motion to fix amount of bond, or affidavit and certificate in lieu of bond prior to the rendition of the judgment appealed from.

“4. Defendants T. C. Tilghman and Margaret M. Tilghman, on 20 October, 1923, tendered to clerk Superior Court what purported to be an answer to the complaint, claiming title and possession to one-fifth interest in a part of' the lands described in the complaint. That said clerk, when said answers were tendered, informed said defendants that he would mark the answers filed but that in law they would not be filed unless they complied with the law as to filing defense bond or making a showing in lieu thereof.

“5. Defendant Mary S. Mercer, on 22 October, 1923, tendered to the clerk of Superior Court what purported to be an answer to the complaint, claiming title, possession, and right to possession of lands described in the complaint. That said clerk when said answer was tendered informed said defendant that it would not be filed unless she complied with the law as to filing defense bond or making a showing in lieu thereof.

“6. That neither of the defendants above named at any time tendered any defense bond or affidavit and certificate in lieu thereof, made any motion to have the amount, of bond fixed until after 30 October, 1923, and until more .than twenty days had expired from the time of service of the summons and complaint on said defendants. That on 1 or 2 November said clerk was -asked by defendant John R. Mercer what the amount of the bond would be, and informed said defendant that the bond would have to secure the amount of rents and profits alleged in the complaint and admitted in the answer, to wit, $6,000, unless counsel for plaintiffs agreed to a smaller sum.

“7. That on 5 November, 1923, the first Monday in the first month after time for above-named defendants to file defense bond and answer had expired, plaintiffs, after having first given notice to defendants by letter addressed to O. P. Dickinson, Wilson, N. O., of counsel for defendants, dated and mailed at Rocky Mount, N. C., on 3 November, 1923, and duly received by him. on 4 November, 1923, of the purpose to make motion before the clerk to strike out the proposed answer and to give judgment by default final for possession and title of said lands as against the defendants without judgment for rents and profits.

'“8. On said 5 November, 1923, the 'clerk allowed said motion and gave judgment accordingly, and found the facts as stated herein.

*440“9. On 14 November, 1923, defendants Mary S. Mercer, T. 0. Tilgh-man and Margaret M. Tilgkman. moved before the clerk to set said judgment aside, and upon Ms denial thereof gave notice of appeal to judge of Superior Court.

“10. On 21 November, 1923, said defendants moved before the undersigned judge to set said judgment aside for mistake, surprise or excusable neglect.

“11. From the evidence adduced on counsel’s admissions in open court it appears that defendant Margaret M. Tilghman and her husband, T. C. Tilghman, executed" and delivered in 1906 to W. P. Mercer, father of the said Margaret, the deed for her interest in said land, which deed is described in the answer which was duly recorded in Edgecombe registry in 1909, and is complete and regular on its face. Thereafter W. P. Mercer mortgaged said land through the foreclosure of which mortgages the plaintiffs claim title.

“12. From the evidence adduced and admission of counsel in open court, it appears that foreclosure sale under the mortgages, at which plaintiffs purchased, was duly advertised in accordance with the terms thereof, and that J. P. Bunn, substituted trustee, was appointed by valid instruments in writing duly recorded in accordance with the provisions of the several mortgages which expressly authorized such substitution.

“13. No evidence of payment of usury on said mortgage loans has been adduced by defendants.

“14. Said mortgages were in default at time of foreclosure, and no one of the defendants has ever tendered payment of the amount due on said .mortgages as admitted by them.

“15. That no defense bond was tendered- by any of the defendants with the motion to set aside the judgment of the clerk.

“Wherefore, the court finds and orders, adjudges and decrees:

“(a) That the judgment of the clerk appealed from was regularly rendered according to law, and same is hereby affirmed on defendant’s appeal.

' “(b) That neither of the defendants Mary S. Mercer, John R. Mercer, T. C. Tilghman or Margaret M. Tilghman has a meritorious defense to this action.

“(c) That said judgment was not .taken by mistake, inadvertence, surprise or excusable neglect, the only excuse for neglect brought to the court’s attention being misapprehension as to the requirements of law in such cases.

“(d) That the motion to set aside judgment aforesaid is hereby denied.

“(e) That plaintiffs recover the costs of this action.”

*441The defendants made numerous exceptions and assignments of error and appealed to this Court. In their brief they -succinctly state their exceptions and assignments of error, as follows:

“The only exception that is shown by the record that was made by the defendants in the lower court was to the signing of the judgment and the finding of facts contained therein.

“The assignments of error committed in signing the said judgment are numerous and we deem it unnecessary to discuss them separately. The combined substance of them is that the conclusions of law arrived at by the trial judge upon his own findings of facts were erroneous, and that upon said facts the judgment as a matter of law should have been set aside for irregularities and for excusable neglect; and that from said facts and the record, the rendition of said judgment amounted to an abuse of discretion.”

Battle & Winslow and L. V. Bassett for plaintiff.

0. P. Dickinson and J. G. Biggs for defendants Margaret M. Tilgh-man and T. 0. Tilghman.

Woodard & Band and R. H. McPhail for defendant Mary 8. Mercer.

B. B. Grantham for defendant John B. Mercer.

Clarkson, J.

This was a motion to set aside a judgment for excusable neglect. The court below found “that neither of the defendants Mary S. Mercer, John E. Mercer, T. C. Tilghman or Margaret M. Tilghman has a meritorious defense to this action.”

In Farmers and Merchants Bank v. Otho H. Duke, Admr., ante, 389, it is said: “It is well settled in this State that the application should show not only mistake, inadvertence, surprise or excusable neglect, but also a meritorious defense. Land Co. v. Wooten, 177 N. C., 250, and cases cited; 23 Cyc., 962, 1031.”

As to the merits of the controversy, the plaintiffs in their brief say:

> “This is an ejectment suit brought by certain fiduciaries to recover possession from Mrs. Mercer and members of her immediate family of the Dr. Mercer home place purchased by plaintiffs under foreclosure, in an effort to save their trust estate from loss arising from the endorsement by their decedent of certain bonds executed by Dr. and Mrs. Mercer for borrowed money. Plaintiffs realize that the judgment in their favor was based upon a technical default on the part of the defendants, and perhaps would not feel justified in insisting upon the advantage thereby gained unless they and their counsel were thoroughly convinced that the result is consonant with right and justice, and that in insisting upon a technicality they are merely using the most direct method of reaching the result which justice and fairness and good conscience would in any event finally arrive at, thus avoiding loss which *442would otherwise be sustained by their trust estate in consequence of delay in bringing the controversy to an end.

> “The suit involves, as to Mrs. Tilghman, a one-fifth interest in some five hundred and fifty acres of land; as to Mrs. Mercer, it ostensibly involves a life estate in said land, but in reality any equity which she may have in said land will be absorbed by a multitude of judgments docketed against her. She has nothing to gain or lose by the determination of this appeal except delay. The complaint is for the recovery of some 2,300 acres of land, but the defendants assert title only to that part which is designated as the Home Place, containing 550 acres, more or less.

> “The defense raised by Mrs. Tilghman is based upon the following: In 1906 she and her husband, both sui juris, executed and delivered to her father, Dr. W. P. Mercer, a deed conveying to him her interest, ■ namely, an undivided one-fifth after his life estate, in the W. P. Mercer Home Place. The deed is admittedly regular and complete in form and contains a certificate of private examination signed by B. P. Jenkins, justice of peace, and was also duly probated and registered in 1909. Some ten years later Dr. Mercer mortgaged the land and the plaintiffs purchased at the foreclosure sale under said mortgage. B. P. Jenkins was in fact an acting justice of the peace, and the certificate of acknowledgment is in his own handwriting. Both Jenkins and Dr. Mercer are dead. In 1923, for the first time, Mrs. Tilghman contended that although she and her husband executed and delivered the deed she was never privately examined, and that the certificate of private examination was a fraudulent act on the part of the magistrate, procured by her father without-her knowledge. After she has sat for seventeen years since the execution of the deed and watched her father support her mother and raise her younger brother and sisters as she had been raised, on a scale of rural antebellum luxury, and had seen him, on the faith of the title vested in him by her deed, borrow money with which to support his family, for her now to assert after the death of her father and the magistrate that the certificate of private examination is the result of a fraud on the part of her father and the magistrate, is a course of action which shocks the conscience of any honest man who hears it and cannot commend itself to the conscience of the court as a meritorious defense. A meritorious defense must be something more than a legal defense, otherwise the decisions would have used the simpler word 'legal.’ It must be a defense which commends itself to the conscience of the court. Furthermore, in view of C. S., 1001, as to conclusiveness of certificate of officer taking the private examination, it would seem that the contention of Mrs. Tilghman would not even be a prima facie legal defense.”

*443The defendants, in their brief, say:

> “The record and statement of case bn appeal will show that the several plaintiffs are the trustees named in the will of R. H. Ricks, deceased, of Edgecombe County, North Carolina, who was a wealthy and influential man in his community, and that the defendants are the widow and children of Dr. W. P. Mercer, deceased, another wealthy and influential citizen of Edgecombe County; that the estate of the said Dr. W. P. Mercer was indebted to a life insurance company of the State of Virginia and others; that the holders of the notes and mortgages against the said estate had sought to foreclose the mortgages by advertising certain lands in Edgecombe and Warren counties for sale under the said mortgages; that certain controversies were existing between the holders of said notes and mortgages and the heirs at law of the said Dr. W. P. Mercer; that a temporary injunction had been granted against the sale of the lands described in the said mortgages; that the said injunction had been dissolved, and that on the day of the sale the attorneys for the defendants personally appeared at the said sale and notified the plaintiffs through their attorneys, who were present, that they were setting up certain claims against the holders of the said notes and mortgages, and that the purchasers of the said land would take due notice thereof; that for some reason, not disclosed in the record, the plaintiffs became the purchasers of the said lands and almost immediately thereafter, in the month of October, before the crops were gathered, instituted an action in the Superior Court of Edgecombe County, North Carolina, against the defendants, claiming the title and right to the immediate possession of the said land described in the complaint, which aggregated more than two thousand acres; that some of the defendants resided upon the said land, some in the town of Wilson, North Carolina, and some outside of the State of North Carolina; that personal service was had only upon three of the said defendants, and an order procured by the plaintiffs for service of the summons upon the nonresident defendants by publication.

> “That plaintiff’s attorneys lived in the town of Rocky Mount, North Carolina, and that defendants were represented by different attorneys, one being represented by an attorney at Rocky Mount, North Carolina, and three by attorneys in Wilson, N. C.; that the complaint contained only three allegations, one as to the title and right to the possession of the land, one describing the land, and the last alleging the amount of rents and profits of the same; that the said complaint contained no allegations explaining the source of the title under which the plaintiffs claimed the right to the said land; that notwithstanding the fact that the defendants and their various attorneys were scattered, and that some of the defendants had to be served by publication, that *444some of tbe resident defendants actually filed answers denying tbe allegations contained in tbe complaint and made inquiries as to tbe amount of tbe bond to be required by tbe clerk; tbe plaintiff’s attorneys made a motion on 5 November, before tbe said clerk, to strike out tbe answers wbicb tbe -record shows bad been filed, and then asked for judgment immediately, settling tbe title to more tban 2,000 acres of land in one of tbe most fertile sections of tbe State of North Carolina; and tbe judgment, wbicb is a part of tbe record, shows that 'the only notice that had ever been given tbe defendants of tbe intention of tbe plaintiffs to pursue this course was contained in a letter written on 3 November, 1923, by K. D. Battle, of counsel for tbe plaintiffs, of Rocky Mount, N. C., to O. P. Dickinson, of counsel for defendants, in Wilson, North Carolina, and wbicb was received by him on Sunday, 4 November, 1923, and service on tbe said notice was never accepted by any one. Indeed, when tbe clerk signed tbe judgment be didn’t know tbe said letter bad ever been received, and tbe record would be silent now on that point except for tbe reply of O. P. Dickinson, set out in bis letter (page 29 of record).

> “Tbe affidavits of Margaret M. Tilgbman and her attorney, O. P. Dickinson, contained in tbe record, will show that tbe said letter was never actually read by tbe said 0. P. Dickinson until tbe day tbe said judgment by default was signed by tbe clerk, and that the answer of Margaret M. Tilghman and her husband, T. C. Tilgbman, was not actually filed by tbe defendants but was filed by their attorney, 0. P. Dickinson, by mailing tbe same to tbe clerk, and that while tbe same was actually filed tbe said clerk did not acknowledge receipt of same. Tbe said affidavits also show that the defendants Margaret M. Tilgb-man and T. 0. Tilgbman were not in possession of tbe said land or any part of tbe same, and never bad been in possession of tbe same, and that they could not be required to give any defense bond.

> . “It is contended by tbe defendants that tbe said default judgment as to the defendants Margaret M. Tilgbman and T. 0. Tilgbman was irregularly rendered and without any authority, and that their answers could not be stricken out because of their failure to file bond since théy could not be required under tbe law to file same.”

The statement of tbe contending parties shows on one band the plaintiffs representing a trust estate that they are trying to save from loss by reason of their decedent, R. H. Ricks, endorsing for Dr. John R. Mercer and bis wife, Mary S. Mercer, for borrowed money. On tbe other hand, by reason of this contract, tbe loss of the home to tbe widow of Dr. W. P. Mercer, Mary S. Mercer, and bis children. Naturally tbe human element enters into the controversy. Tbe duty of tbe plaintiffs, trustees for others, on tbe one band, and tbe misfortune of *445tbe widow and children on the- other hand. The court below, presided over by a just and humane judge, is presumed to have taken all these matters into consideration, and found that the defendants had no “meritorious defense.”

This Court, in Farmers and Merchants Bank v. Duke, supra, said: “It is the duty of the court below to find the facts, and his finding is ordinarily conclusive. Upon the facts found the conclusion of law only is reviewable.”

The facts found by the court below in part are:

> “Summons was issued 29 September, 1923, and verified complaint filed same day. Summons and copies of complaint were personally served upon the defendants Mary S. Mercer and Jno. R. Mercer on 1 October, 1923, and upon Margaret M. Tilghman on 8 October, 1923.”

> “That neither of-the defendants above named at any time tendered any defense bond or affidavit and certificate in lieu thereof, made any motion to have the amount of bond fixed until after 30 October, 1923, and until more than twenty days had expired from the time of service of the summons and complaint on said defendants.”

“That on 5 November, 1923, the first Monday in the. first month after time for above-named defendants to file defense bond and answer had expired” — motion was made before the clerk to strike out the proposed answer and to give judgment by default final, etc., which was done.

On 14 November, 1923, defendants moved before the clerk to set said judgment aside, and upon his denial app'ealed to the judge of the Superior Court, and on 21 November, 1923, said defendants moved before the judge to set said judgment aside for mistake, surprise, or excusable neglect.

The court below held “that the judgment of the clerk appealed from was regularly rendered according to law,” and “that said judgment was not taken by mistake, inadvertence, surprise, or excusable neglect.”

The record shows the summons and copy of verified complaint was personally served on John R. Mercer on 1 October, 1923. Under the law, “the answer or demurrer shall be filed within twenty days after the return day, or after service of the complaint,” etc. (Public Laws, Extra Session 1921, ch. 92, sec. 1, subsec. 3.) Jno. R. Mercer did not tender his answer until,5 November, 1923. The plaintiff moved on 5 November, 1923, for judgment by default final against Jno. R. Mercer. This was allowed by the clerk and was proper. Lerch v. McKinne, 186 N. C., 244.

Ordinarily excusable neglect cannot arise out of a mistake of law. Skinner v. Terry, 107 N. C., 103; Phifer v. Ins. Co., 123 N. C., 409; Mann v. Hall, 163 N. C., 51.

*446Tbe plaintiff moved, on 5 November, 1923, for judgment by default final against Mary S. Mercer, T. C. and Margaret M. Tilgbman, and that tbe proposed answers be stricken from tbe files. Tbe clerk allowed tbis motion and rendered tbe following judgment: “That tbe proposed answers of Mary S. Mercer, T. C. Tilgbman and Margaret M. Tilgb-man be stricken out for failure to file defense bond as required by C. S., 495, or to make proper showing for purpose of defending tbe action in forma pauperis.”

C. S., 495, is as follows: "In all actions for the recovery or possession of real property the defendant¡ before he is permitted to plead, must execute and file (italics ours), in tbe office of tbe clerk of tbe Superior Court of tbe county where tbe suit is pending, an undertaking with sufficient surety, in an amount fixed by tbe court, not less than two hundred dollars, to be void on condition that tbe defendant pays to tbe plaintiff all costs and damages which tbe latter recovers in the action, including damages for tbe loss of rents and profits.”

Tbe plaintiffs were diligent, they agreed to nothing and waived nothing; tbe Monday after tbe time bad expired tbe motion was made in accordance with tbe statute. They were in their legal rights.

C. S., 595. "By default final. — Judgment by default final may be bad on tbe failure of tbe defendant to answer.” Subsection 4 is as follows: “In actions for tbe recovery of real property, or for tbe possession thereof, upon tbe failure of tbe defendant to file tbe undertaking required by law, or upon failure of bis sureties to justify according to law, unless tbe defendant is excused from giving such undertaking before answering.” Tbis section must be construed with C. S., 495, and Public Laws, Extra Session 1921, ch. 92, sec. 1, subsec. 3, supra. Statutes in pari materia are to be construed together.

We do not mean by tbe position taken in tbis ease to bold that tbe filing of tbe bond cannot, under certain circumstances, be waived, and when a case is in tbe Superior Court at term, that tbe judge does not ordinarily have discretion.

In Dunn v. Marks, 141 N. C., 232, it is said: “Tbis is an action of ejectment. At November Term, 1905, tbe first term after service of summons, tbe defendant filed bis answer, but failed to file bis defense bond as required by Revisal, 453 (C. S., 495). No action was bad at that term. At December term tbe plaintiff moved for judgment for want of a defense bond. Tbe court in its discretion granted sixty days leave to file such bond. From tbis order and tbe refusal of judgment by default, tbe plaintiffs appealed. Tbis is a motion to dismiss tbe appeal on tbe ground that tbis was a matter of discretion from which no appeal lay. The plaintiff, having made no objection to tbe failure *447to file bond at tbe terra at which, the answer was filed, it is questionable if the judge ought to have given judgment at the subsequent term without giving the defendant some opportunity to file bond. McMillan v. Baker, 92 N. C., 110 (85 N. C., 291). Whether or not time should have been given to file bond was a matter in the discretion of the judge. Eevisal, 512 (C. S., 536), provides: 'The judge may likewise in his discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to he done, after the time limited, or by an order enlarge such time.’ This applies to filing the defense bond required by section 453 (C. S., 495). Taylor v. Pope, 106 N. C., 267.”

C. S., 547, is as follows: “The judge or court may, before and after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding, by adding or striking-out the name of any party; by correcting a mistake in the name of a party, or a mistake in any other respect; by inserting other allegations material to the case; or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the fact proved. When a proceeding taken by a party fails to conform to law in any respect, the trial judge may permit an amendment of the proceeding so as to make it comformable thereto.”

Public Laws, Extra Session 1921, ch. 92, sec. 1, subsec. 18, is as follows: “Nothing herein contained shall be construed to prevent the resident judge or the judge holding courts in any district from making-such orders and decrees as are now provided in injunctions and other-provisional and extraordinary remedies, or from extending the time to answer in all cases upon motion upon five days notice as to time and place, which are to be fixed by the judge; and the judge in his discretion may in term time allow amendment of pleadings on file, or allow the filing of any other pleadings in all eases transferred to the civil issue docket for trial.”

It will be observed that while it was held in Lerch v. McKinne, 186 N. C., 245, “if the complaint is served with the summons as provided in the statute, the defendant shall have twenty days after such service in which to answer, and in such event the clerk has no authority to extend the time for filing an answer beyond twenty days after service of the complaint,” this does not withdraw from the defendant the right to apply to the resident judge, or the judge holding- the courts of the district, for an extension of time within which to file answer, upon five days notice being given as to the time and place when such motion will be made.

In Cahoon v. Everton, ante, 373, it was said: “The plaintiff having-made no motion before the clerk for judgment by default on account *448of tbe answer not being filed in time, and allowed' tbe ease to be transmitted for trial on tbe issues at term, waived bis right and tbe fact that tbe answer was not filed before tbe clerk in time will be considered waived, under tbe facts and circumstances of tbis case. Tbe court below treated it as filed in time and made tbe order as set out in tbe record.”

McNair v. Yarboro, 186 N. C., 111, is in harmony with tbe position taken here. ¥e do not think tbe case of Shepherd v. Shepherd, 179 N. C., 122, is in conflict. In that ease Brown, J., said: “An order of tbe Superior Court striking out an answer for want of a bond is reviewable where tbe defendant has been led to believe that tbe plaintiff has waived tbe bond. McMillan v. Balter, 85 N. C., 291 (92 N. C., 110), and cases cited in tbe opinion. In tbe ease at bar tbe answer was filed at tbe same term with tbe complaint. No motion was made for an entire year, and then only when tbe case bad been continued for tbe term, and on tbe last day of that term.” The defense bond was allowed to be filed within a reasonable time.

In tbe instant case tbe jDlaintiffs waived no right, but stood strictly on their legal rights; there was no consent and no waiver but a demand for what was plainly written in tbe statutes. We cannot make tbe law, that is for tbe legislative branch of tbe Government. They have seen fit to establish a new procedure for tbe bringing of actions. It may work hardships, but we have no power to legislate. Tbe statutes will have to be followed. Any change can only be made by consent of tbe parties or waiver, which implies consent and estops one from demanding strict compliance.

Tbe caption of cba¡Dter 92, Extra Session 1921, supra, is as follows: “An act to amend chapter 156 of tbe Public Laws 1919, chapter 96 of tbe Public Laws, Extra Session 1920, and chapter 96 of tbe Public Laws 1921, relating to civil procedure in regard to process and pleadings, and to expedite and reduce the cost of litigation (italics ours), and to consolidate tbe various acts relating thereto.”

It was necessary under tbe statute for Mrs. Margaret M. Tilghman to give bond. She claimed as a' tenant in common. “A possession of one tenant in common is in law tbe possession of all bis cotenants because they claim by one common right.” Black v. Lindsay, 44 N. C., 467. See Lester v. Harward, 173 N. C., 85; Gentry v. Gentry, ante, 31.

Tbe discretion of tbe trial judge as to findings of fact is well stated by Stacy, J., in S. v. Jackson, 183 N. C., 698: “Tbe findings of fact of a referee, approved by tbe trial judge, are not subject to review on appeal, if they are supported by any competent evidence. Dorsey v. Mining Co., 177 N. C., 60; Hudson v. Morton, 162 N. C., 6; Hunter v. *449 Kelly, 92 N. C., 285. Likewise, where the judge, upon bearing and considering exceptions to a referee’s report, makes different or additional findings of fact, they afford no ground for -exception on appeal unless there is no sufficient evidence to support them, or error has been committed in receiving or rejecting testimony upon which they are based, or unless some other question of law is raised with respect to said findings. Caldwell v. Robinson, 179 N. C., 518; Thompson v. Smith, 156 N. C., 345; Rhyne v. Love, 98 N. C., 486. See, also, C. S., 579, and annotations thereunder.” Norton v. McLaurin, 125 N. C., 187, and cases cited; Farmers and Merchants Bank v. Duke, supra. We think the court below had competent evidence upon which to support its findings of fact.

We have examined carefully the record, findings of fact, judgment and able briefs of counsel on both sides but can find no error. . The judgment is, therefore,

Affirmed.