#### J. C. EXUM, and J. C. EXUM, Administrator of the Estate of J. EXUM, Deceased, Trading as J. EXUM & COMPANY, v. CAROLINA RAILROAD COMPANY, M. S. HAWKINS and L. H. WINDHOLZ, Receivers of NORFOLK SOUTHERN RAILROAD COMPANY, and H. K. COBB, Sheriff of GREENE COUNTY.

(Filed 4 November, 1942.)

1. Pleadings § 15—

In an action to remove a cloud from plaintiffs’ title, caused by a docketed judgment alleged to be invalid, a demurrer to the complaint, as not stating a cause of action, was properly overruled, C. S., 1743, being sufficiently broad to entitle plaintiff to maintain an independent action.

2. Limitation of Actions § 2a—

Where judgment was taken in 1926, and in 1931 defendant moved before the clerk to set the judgment aside, motion denied and appeal taken to the judge, and the clerk ordered that execution should not issue until the *223adjournment of the August, 1931, Term of court, and the appeal to the judge was never heard, the order of the clerk and the appeal to the judge did not have the effect of stopping the statute and the judgment is barred in 1939 by the ten years statute of limitations. Adams v. Guy, 106 N. C., 275, cited and distinguished.

Appeal by plaintiffs from Burney, J., at February Term, 1942, of GcreeNE.

Eeversed.

This was an action to remove cloud from title to plaintiffs’ land, caused by a docketed judgment alleged to be invalid, and to restrain execution. Demurrer to the complaint was overruled, and defendants having excepted, answered. The determinative issue raised by the pleadings was whether defendants’ judgment was barred by the statute of limitations. This was submitted to the jury upon an agreed statement of facts. The court being of opinion that upon these facts the judgment attacked was not barred, so instructed the jury.

From judgment on the verdict returned in accord with this ruling, the plaintiffs appealed.

Walter G. Sheppard and K. A. Pittman for plaintiffs.

Charles F. Rouse for defendants.

Devin, J.

The question presented by this appeal is whether, upon the facts agreed, the defendants’ judgment was barred- by the ten years statute of limitations. C. S., 437.

The material facts were these: In 1926 the defendant Carolina Bail-road Company obtained a judgment by default in Lenoir County against J. C. and J. T. Exum, the present plaintiffs, for a sum certain. The judgment was rendered by the clerk and was duly docketed. In 1931 the defendants in that action made a motion before the clerk to set aside the judgment. This motion was heard and denied by the clerk 3 August, 1931. The defendants in that action appealed to the judge. The clerk thereupon noted that execution should not issue on the judgment until the adjournment of the August, 1931, Term of Lenoir Superior Court. The appeal from the clerk was never at any time heard by a judge of the Superior-Court, and is still pending. No other order was ever entered.

In February, 1939, the present owners of the judgment had the judgment docketed in Greene County, where the present plaintiffs reside and own land, and caused execution to issue, and the sheriff has indicated his intention to proceed to enforce the execution against the property of the plaintiffs. This action was instituted to have the judgment declared invalid and a cloud on the title to plaintiffs’ land, and to restrain the sheriff from proceeding to enforce execution thereon.

Admittedly the judgment rendered in 1926 was barred by the statute of limitations in 1939, unless the pendency of the appeal to the judge *224from the order of the clerk in 1931, denying the motion to set aside the judgment of 1926, had the effect of stopping the running of the statute. C. S., 614, provides that the time during which the judgment creditor shall have been restrained from proceeding thereon by injunction, or other order, or “by the operation of any appeal,” shall not constitute any part of the ten years period. Here the appeal was from the clerk’s denial of a motion to set aside the judgment. The judgment was still in force and the lien enforceable. There was no supersedeas, or injunction, or restraint upon execution, except for a short period during the month of August, 1931. The appeal to the judge from the clerk’s ruling may not be held to have had the effect of a supersedeas, or restraining order, or to arrest the running of the statute. The judgment creditors had the right to cause execution to issue at any time within ten years from the date of the rendition of the judgment in 1926. Having-failed to do so or take any action to enforce the lien of their judgment within ten years, the right to do so was thereafter barred by the statute. Blow v. Harding, 161 N. C., 375, 77 S. E., 340; Lupton v. Edmundson, 220 N. C., 188, 16 S. E. (2d), 840. In Adams v. Guy, 106 N. C., 275, 11 S. E., 535, cited by defendants, the appeal from the clerk to the judge was upon a motion to issue execution, and the decision that the judgment was not barred by the statute of limitations was based upon the ground that “the appeal did not leave the plaintiff at liberty to have an execution and enforce the same during its pendency.”

Further referring to Adams v. Guy, supra, it may be noted that at the time of that decision (1890), in accord with the statute then in force (The Code, section 440, later codified as C. S., 668), a judgment became dormant after the lapse of three years from the entry of judgment, and execution thereon could not be issued until, after notice and proof that the judgment had not been satisfied, leave for that purpose was granted, and the judgment revived. But by ch. 24, Public Laws 1927, C. S., 668, was expressly repealed, and there was thereafter no restraint upon the right to issue execution at any time within ten years from the rendition of the judgment. C. S., 667. In the Adams case, supra, the judgment had become dormant. The motion for leave to issue execution was allowed, but from the clerk’s order allowing the motion an appeal was taken to the judge, and, from the latter’s' affirmance, to this Court. During the pendency of the appeal the ten years period from the docketing of the judgment expired. At that time, as execution could not issue except by leave of the court, and -as the appeal involved the right to issue execution, it was held that, under The Code, section 435 (now C. S., 614), the time of the pendency of the appeal should not be counted as part of the ten years period, and hence that the right to issue execution was not barred.

*225In tbe instant case tbe motion to set aside tbe judgment bad no relation to tbe issuance of execution, and no order restraining execution was asked or obtained. Tbus no restraint was effected by tbe appeal.

It appears also in tbe case at bar tbat in 1939, while tbe appeal from tbe clerk’s order was still pending, and without waiting for its decision, tbe defendants caused execution to issue in tbe effort to enforce tbe lien of their judgment. We think this was then too late.

We conclude tbat there was error in tbe ruling of tbe court below as to tbe statute of limitations, and tbat upon tbe facts agreed tbe plaintiffs were entitled to have tbe court bold tbat tbe defendants’ judgment was barred by tbe statute of limitations.

Tbe defendants demurred to tbe complaint on tbe ground tbat it did not state facts sufficient to constitute a cause of action in tbat plaintiffs bad an adequate remedy at law by motion in tbe original cause in Lenoir County, and could not proceed by independent action. Tbe demurrer was overruled by Judge Frizzelle, and tbe defendants excepted. They now ask tbat their challenge to tbe plaintiffs’ right to maintain this action be considered. Tbe defendants’ exception to tbe overruling of their demurrer cannot be sustained. Tbe provisions of C. S., 1743, are sufficiently broad to entitle tbe plaintiffs to maintain this action on tbe facts alleged, and tbe decisions of this Court are in full support. Crockett v. Bray, 151 N. C., 615, 66 S. E., 666; Harris v. Distributing Co., 172 N. C., 14, 89 S. E., 789; Stocks v. Stocks, 179 N. C., 285 (289), 102 S. E., 306; Mizell v. Bazemore, 194 N. C., 324, 139 S. E., 453.

On plaintiffs’ appeal,

Beversed.

On defendants’ appeal,

Affirmed.