after stating the facts. The only payments ever made upon the notes due by McDowell to Eobin-son were made by G. E. Melvin, the assignee in the deed of trust of 1893. The assignee was not authorized in the deed of trust by the grantor to make any promise to pay the balance of the debt upon any payment made by him or to revive the debt after the same might become barred by the statute of limitations. He was the agent of the grantor, according to the provisions of the deed of trust, to perform such duties as were imposed upon him in the deed, viz., to sell the property and apply the proceeds in the manner directed. A payment, therefore, by the assignee, did not have the effect of arresting the running of the statute of limitations against Eobinson’s debts. Battle v. Battle, 116 N. C., 161.
The statute of limitations having been pleaded by the defendant against the debts of Eobinson, the jury properly found under the instructions of the Court that those debts were barred. But that did not affect the security contained in the deed of trust for the payment of those debts. There was a provision in the deed under which the trustee was given discretion as to the time, place, manner and terms of the sale of the property embraced in the deed. And if that had not been so, if the deed had contained only a power of sale without limitation as to time of sale, the power of the trustee to sell and apply the proceeds of the sale to the debts would not be destroyed, because the debts secured might be barred by the statute of limitations. Menzel v. Hinton, 132 N. C., 660, and cases there cited. The property, therefore, conveyed in the deed of trust was, and is, a security for the debts, though they might be defeated by the plea of the statutory bar, so far as the personal liability of the debtor is concerned. There *186was no error in that part of the judgment, therefore, which decreed that no part of the land of the intestate, other than that conveyed in the deed of trust, could be sold to pay the 'Robinson debts. His Honor held, however, that the Robinson debts were barred by the statute of limitations as to the reversions in the homestead of the grantor, and in the judgment of the Court it was adjudged that no part of the proceeds of the sale of the reversion in the homestead interest should be applied to the Robinson debts. When that judgment was rendered his Honor followed the law as it had been declared by this Court in Joyner v. Sugg, 131 N. C., 324; but since that time the ease of Joyner v. Sugg has been reheard and the former judgment reversed. His Honor simply followed our error, and in his ruling there was error, and the opinion of the Court below on that point is reversed.
The homestead has fallen in by the death of the homesteader, and the tract of land will be sold, as if the homestead had never been allotted, and the Robinson debts will come in for their proper share of the proceeds.
Affirmed, except as to the reversal of that part of the judgment concerning the reversion of the homestead as above pointed out.
DEFENDANTS'’ APPEAL IN SAME CASE.
The defendants insisted that the Court below erred in not dismissing the action, because of a want of jurisdiction, that is, that because of the uniting of the trustees with the administrator in the petition to make real estate assets, the Clerk did not have jurisdiction of the matter, and that therefore the Superior Court, on the case being sent to that Court from the Clerk for trial, did not have jurisdiction. In the case of Roseman v. Roseman, 127 N. C., 494, and cases there cited, it is difficult to understand the excep*187tion of the defendant to dismiss the action on the ground assigned. The defendants’ exception to the uniting of the administrator and the trustees, McLean and Melvin, and to the introduction of the deeds of assignment as evidence in the case, ought not to be sustained. We think it commendable that the trustees and the administrator should have jointly commenced this proceeding, for it is almost certain that time and expense have been saved, and that the property will sell for a better price under the direction and order of the Court in this case than it would have brought if the administrator had sold the equity of redemption and the trustees or either one of them had sold the property under the deed of trust.
There is no merit in the ground taken in the defendants’ brief that the deeds of trust and the rights of creditors under them were destroyed because of an allegation in the petition that the intestate was seized in fee-simple of the lands described in the petition, embracing those conveyed in the deed, and an admission of that allegation by the defendants. The whole pleadings go to show that the deed of trust was to be respected in its provisions as to the application of the proceeds of the sale of the land conveyed therein, and the allegation that the fee-simple title was in the intestate was simply made to show that the title to the property would be complete and the entire interest in the land would be conveyed under the order of sale prayed for by the petitioners. The defendants’ contention is too highly technical for adoption.
Erom our point of view it makes no difference whether the deed of trust of 1893 was valid or not. Either that or the one one of 1888 was valid, and the trustees named in both are parties to this proceeding. It appears from the defendants’ statement of the case on apneal that both McLean and Melvin were parties plaintiff; but in the plaintiff’s appeal McLean does not seem to be a party. If he is not, it will be well for the plaintiffs t‘o bring him in by amendment. In the judg*188ment it appears that Newton Nobinson is appointed a commissioner to sell tbe land for cash, etc. Before that sale is made tbe commissioner must be required to file a proper bond in a sum double tbe value of tbe property to be sold, conditioned for tbe faithful discharge of bis duty in making the sale and in applying the proceeds. This must be done, that the creditors may feel as secure in tbe sale of tbe property by tbe Court as if tbe sale bad been made by one of their own choice.
No error.