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.