after stating the case: The ruling of the couri which denied plaintiff’s motion for judgment was correct. The dismissal of the former suit, if for the same cause of action, did not constitute an estoppel, as the case was not heard and decided on its merits, but- the dismissal was equivalent to a nonsuit, granted because plaintiff .in that *520suit bad not prosecuted the same. It was early decided, in Bond v. McNider, 25 N. C., 440, that no judgment, but one on a retraxit or on the merits, will bar a subsequent action, and that an entry, “Dismissed at the costs of the defendant,” is not to be considered as a retraxit, or a judgment upon the merits, so as to constitute a bar to another action for the same cause. It is simply a judgment of discontinuance, where the court erred in ordering the defendant to pay the costs, where such order was made by the consent of the parties. It was also held that the entry that the defendant pay the costs was not even prima facie evidence of an accord and satisfaction. It was said, more at large, in that case that, “At common law there is no form of an entry in the books of a judgment dismissing an action. Every judgment against a plaintiff is either upon a retraxit, non pros., nonsuit, nolle prosequi, discontinuance, or a judgment on an issue found by the jury in favor of the defendant, or upon demurrer. The inducements or preliminary recitals in these several kinds of judgments are variant, but the conclusion in each is always the same; it is as follows: ‘Therefore, it is considered by the court that the plaintiff take nothing by this writ, and’ that the defendant go without day and recover of the plaintiff his costs, etc.’ If the entry above mentioned could be considered as a retraxit, or a final judgment on the merits, it would bar the plaintiff’s action; otherwise it would not. A retraxit it cannot be, for that is always made in person in open court, when the trial is called. 2 Arch. Prac., 250; 3 Thomas Coke, 500. The issue upon the plea of “release” in the county court was not tried by a jury; so that the said entry could not be considered a judgment upon a verdict. The entry does not show that the merits of the cause were passed upon. We know of no reported case like it in this State. We must, however, consider it as nothing-more than a judgment of discontinuance, where the court erred in ordering the defendant to pay the cost, or it is such a judgment with the consent of the parties that the defendant should pay the costs. Garter v. Wilson, 2 Dev. and Bat., 276. It is therefore no bar to this action. Arch. Prac., 235; Maulé and Selw., 153.”
The case of Bond v. McNider has been frequently approved by this Court: Plummer v. Wheeler, 44 N. C., 472; Carr v. Woodleff, 51 N. C., 400; Idding v. Hiatt, ibid., 402; Koonce v. Pelletier, 82 N. C., 237, 240; Rollins v. Henry, 84 N. C., 570, 579; Weeks v. McPhail, 129 N. C., 73.
In Koonce v. Pelletier, supra, Smith, G. J., said that “The dismissal, on account of its vague and unsatisfactory statements and not being based upon an examination into the merits, is rather of the nature and effect of a nonsuit, as was held in Bond v. McNider, 25 N. C., 440, and is not a bar to a subsequent application.” It was also held in Campbell v. Potts, 119 N. C., 530, that “Where, in an action to recover land, the defendant pleaded in bar a former judgment in an action brought *521against ber by plaintiff’s grantor, in which defendant had denied the grantor’s title, and it appeared that there had been no trial of such former action, but only a judgment of dismissal, such .judgment of dismissal was not a bar to the existing action.” Black on Judgments states this principle with clearness and accuracy. There it is said: “The mere dismissal oí a complaint in an action at law, even after the plaintiff has put in his evidence on the trial, has no more force than a non-suit at common law, and does not bar a subsequent action for the same cause. As there may be various sorts of nonsuits, considered with reference to the stage of the cause at which entered, and in respect to the question of the plaintiff’s acquiescence, so will it be with judgments of dismissal. And in the first place it is perfectly evident that a judgment entered upon the dismissal of a complaint because of the plaintiff’s failure to appear, where there was no trial of the action and no consideration of its merits, cannot be a bar to a subsequent suit. And when it appears from the record that the court never determined the merits of the controversy nor rendered any judgment affecting the same, but simply dismissed the plaintiff’s action, without trial and without evidence, such judgment does not support a plea of former adjudication.” Numerous eases which are collected in the note fully sustain this text. And to the same effect is Freeman on Judgments (4 Ed.), sec. 261, where we find this statement: “Judgments of nonsuit, of non prosequi-tur, of nolle prosequi, of dismissal, and of discontinuance are exceptions to the general rule that when the pleadings, the court, and the parties are such as to permit of a trial on the merits, the judgment will be considered as final and conclusive of all matters which could have been so tried. A nonsuit ‘is but like the blowing out of a candle, which a man at his own pleasure may light again.’ Under no circumstances will such a judgment be deemed final, whether entered before or at the trial.” And again, at p. 476: “A dismissal or nonsuit not determining the rights of the parties cannot support the plea of res adjudicata. Nor will the reasoning and opinion of the court upon the subject, on the evidence adduced before it, have the force and effect of a thing adjudged, unless the subject-matter be definitely disposed of by the judgment.”
"We do not say that where it appears that the merits have been considered and passed upon, the judgment of dismissal may not be successfully pleaded as a former adjudication, but no such thing occurred here. The other suit was dismissed, with costs against the plaintiff, simply because he had failed to restore the lost record, and in no sense were the merits touched upon. It could have no more legal effect than a nonsuit, where the plaintiff fails to prosecute his cause, or is called and fails to appear. His laches put him out of court, and that is all it does, and he may come back again at his will and pleasure and pursue *522the same cause without being affected by any bar of the former judgment.
Nor do we think that the plaintiff can' gain anything by reason of the fact that the suit was not revived within one year after the dismissal. That is required to be done only under Revisal, sec. 370, where the statute of limitations would otherwise bar by the lapse of the period prescribed for bringing the suit.
It was held in Keener v. Goodson, 89 N. C., 273, that section 370 was intended to enlarge the period of limitation and not to abridge it. But the conclusive answer to this contention is that the defendant was in possession of the land all the time from the day of the sale, and the statute did not run against her for that reason, so that the failure to bring her action within the supposed year of grace is not material. That her possession, and that of her father, suspended the operation of the statute has been well settled. Mast v. Tiller, 89 N. C., 423. The provision as to bringing a new action within one year after a nonsuit or dismissal, reversal, or other termination of the first suit, as prescribed in the statute, refers only to those eases where the statute of limitations is applicable, and would bar, but for this clause, which, if complied with, saves the cause of action. Clark’s Code (3 Ed.), sec. 142 and note. If the possession of the feme defendant, since the sale, prevents the bar of the statute, she did not need the additional time of one year within which to sue. The one-vear clause apiffies only where the statute is operative .and would defeat the new action if it were not commenced with the extended period, as above shown.
But, while the plaintiff was not entitled to judgment upon the record, we are of the opinion that the judge committed an error in the instruction as to the quantum of proof, in the seventh issue. It was intended by the issue to engraft a parol trust upon the legal title acquired by D. 8. Powell, at the sale, which afterwards passed, by his deed, to Effie Grimes, the plaintiff. The deed, on its face, purports to convey to her a fee simple absolute in the land, and defendants seek to change this into an estate in trust,- the terms of the latter being that Alfred Andrews should be entitled by virtue of a prior agreement with D, S. Powell to have him, Powell, reconvey the land to him upon reimbursing Powell his expenditures. This essentially changes the deed, and, as the law strongly presumes that it was correctly written,' it requires more than a bare preponderance of the evidence, or the overbearing of the evidence, to meet this strong presumption and overcome it. This, case is not unlike the many we have decided which involve the same question, as to the quantum of proof, where the deed is substantially varied from the “written words,” which we have so often said must abide and control the rights of the parties unless the requisite evidence is -forthcoming. We have, at this term, fully discussed the matter in several cases, re*523affirming wbat was decided in Ely v. Early, 94 N. C., 1; Harding v. Long, 103 N. C., 1; Cobb v. Edwards, 117 N. C., 253; Avery v. Stewart, 136 N. C., 426; Lehew v. Hewett, 138 N. C., 6; .King v. Hobbs, 139 N. C., 171; White v. Carroll, 147 N. C., 330; Gray v. Jenkins, 151 N. C., 80; McWhirter v. McWhirter, 155 N. C., 145. The eases at tbis term in which we applied the same rule of evidence are Ray v. Patterson, ante, 226; Lamb v. Perry, 169 N. C., 436, and Glenn v. Glenn, 169 N. C., 729, to all of which we refer without further comment, except Glenn v. Glenn, supra, 169 N. C., at p. 730, where it is said to be established with us that “where a defendant holds under a deed formally conveying to him the legal title to real property, and a claimant is seeking to correct a mistake in the instrument or annex a condition to it or en-graft a trust upon it, he is required to make out his claim by clear, strong, and convincing proof. Cedar Works v. Lumber Co., 168 N. C., 391; Ely v. Early, 94 N. C., 1.” Cobb v. Edwards and Ray v. Patterson, supra, are exactly like this case, and certainly so in principle. This error entitles the plaintiff to a new trial, which is ordered.
The court was right in refusing to enter judgment of nonsuit against the plaintiff. The defendants were not entitled to judgment upon the verdict, so far as it related to the parol trust, as the instruction of the court upon the seventh issue was erroneous, as we have held in the plaintiff’s appeal; and a new trial was the necessary result. The motion for a nonsuit was made by defendants, we presume, in order to preserve their rights, if we had decided that there was no error as to that issue. Nor were defendants entitled to judgment upon the verdict, so far as it related to the ninth and eleventh issues, and the fourteenth and fifteenth issues, as the court set them aside, and very properly. The possession of Alfred Andrews was not adverse prior to the sale by the commissioner, F. Gr. James, in 1901, as a man cannot hold possession adversely to himself. Alfred Andrews owned the land on 21 February, 1900, when he mortgaged it to D. S. Powell, and his possession from that time to the day of the sale by the commissioner was subordinate to the title of his mortgagee. Parker v. Banks, 79 N. C., 480, where it was said by Justice Bynum: “It’is well settled that the mortgagor is the tenant of the mortgagee, and, therefore, that his possession is not hostile, or adverse, to the mortgagee.” So that, nothing else appearing, except the simple relation of mortgagor and mortgagee, with the former in possession of the land, there was no adverse holding by him, and such a possession could not commence until after the sale, when the title had passed from him, or his heir if he had died intestate, to the purchaser. He must have twenty years adverse possession *524after that time before the title will be restored to him, and he cannot rely on his former title as color, for he lost that by the sale. He must have acquired a new color after the sale. We discussed this phase of the case fully in Call v. Dancy, 144 N. C., 495, following the decisions in Johnson v. Farlow, 35 N. C., 84, and Wilson v. Brown, 134 N. C., 400.
There being no adverse possession by the defendants under color, and none without color sufficient in length of time to vest a new title in defendants, the judge was clearly right in setting aside the ninth and eleventh issue,s; and as there was nothing left for the fourteenth and fifteenth issues to rest upon, it follows logically that they also should have been set aside.
The last three issues were dependent upon the findings of the jury in response to those preceding them, and were submitted merely to determine the title, ak between the parties, according to the verdict on the other issues.
The judge left the tenth issue undisturbed, we presume, for the purpose of ascertaining whether the defendants had been in possession, claiming the land as their own, as bearing on the question of notice to plaintiff of defendants’ equity, growing out of the alleged parol trust, the general rule being that possession constitutes such notice. Justice Dillard said, in Heyer v. Beatty, 83 N. C., 289: “The rule in equity undoubtedly is that a party taking with notice of an equity takes subject to that equity; that is to say, he is assumed to take and hold only such interest in the property conveyed as his vendor might honestly dispose of, having due regard to the equities existing against him in favor of others. Adams Eq., 151; Webber v. Taylor, 55 N. C., 9; Maxwell v. Wallace, 45 N. C., 251. And the kind of notice spoken of in said rule may be an actual or constructive notice. In this case there is no pretense of actual notice to the plaintiff of the right claimed by defendant, but it is plainly implied, from the terms in which the instruction was asked, that the defendant claimed only to affect the legal title of the plaintiff with a trust from a notice by construction from the mere fact of his possession at the time of the sale. Possession is suggestive of title or right in the possessor, and a prudent man should and would inquire into such apparent right before trading with another; and if he do not, it is but just to the rights of the party in possession to hold the purchaser as affected with notice of the equities in his favor.” Many cases have approved this doctrine. Edwards v. Thompson, 71 N. CL, 177; Tankard v. Tankard, 79 N. C., 55 (s. c., 84 N. C., 288); Bost v. Setzer, 87 N. C., 187; Johnson v. Hauser, 88 N. C., 388; Staton v. Davenport, 95 N. C., 12; Campbell v. Farley, 158 N. C., 42. This rule, if it appears, by the facts developed at the next trial, to be applicable, will be available to the party who may benefit by it.
*525As to Effie Grimes being a purchaser for value, we presume the evidence on that question will be made clearer hereafter. There was some dispute between counsel as to the effect of. an entry in the record apparently bearing upon that issue, and a petition for a certiorari was filed for the purpose of having it appear more certainly what the entry meant and how it should be used in the case; but we did not consider it necessary that notice of the petition should be issued, as the matter may be differently presented if the case again comes before us.
We would siiggest that the fourth issue be worded so as to submit the inquiry to the jury in this form: “Was Effie Grimes a purchaser for value ?” and the eighth issue in this form: “Did she have notice of the equity alleged to have arisen out of the agreement between Alfred Andrews and D. S. Powell?” The issues as to the parol trust, as to Effie Grimes being a purchaser for value and as to her having notice of the equity, should be submitted together and consecutively, as they will now constitute defendant’s main if not sole ground for a recovery. "We suggest the change in the form of the issue as to plaintiff being a purchaser for value, because in its present form an answer as to what .she paid for the land would not necessarily determine whether or no she bought for value, as, in the legal sense of that term, she may have paid more or less than its value for the land.
The court committed no error in refusing to sign the judgment tendered by the defendant, as, in the view we have taken of the case, they were not entitled to it. We may add, though, that if D. S. Powell and E. J. Grimes, the junior encumbrancers, were parties, with F. J. H. P. Bryant, the senior mortgagee, and Alfred Andrews, the mortgagor, to the foreclosure suit, we do not see why D. S. Powell did not acquire a good title, unless Powell made the agreement with Andrews as alleged by defendants and the plaintiff did not purchase from him for value and without notice of it, because, with the consent of the court, D. S. Powell, the junior encumbrancer, could buy, being a party to the suit, and the court sold the legal title and all the equities. Whether D. S. Powell could have bought if he had not been a party to the foreclosure suit, but simply the holder of a junior mortgage, we need not decide. We held in Jones v. Williams, 155 N. C., 179, that the holder of a junior mortgage could not be deprived of his rights by a sale under a decree in a foreclosure suit to which he was not a party, and it would seem, without finally deciding the question, as all the facts are not now certainly and definitely before us, that a sale under a' foreclosure decree would pass a good title against all who were made parties to the suit; and if this be so, Taylor v. Heggie, 83 N. C., 244, relied on by the defendants, would have' no application. We prefer, though, not to give any final or conclusive opinion upon this question until we are better informed as to the facts. Pi appears, but only by inference from what *526is stated in tbe record, tbat all persons, mortgagor and mortgagee, interested in a foreclosure, were made parties to tbe suit in wbicb tbe sale was decreed.
Tbe general result in botb appeals is tbat a new trial must be bad, and tbe issues rearranged so as to eliminate those wbicb bare been rendered useless or immaterial by tbis opinion, and some changed so as to present tbe true inquiries more clearly and sharply to tbe jury and in a more compact form.
There was error in plaintiff’s but none in tbis appeal.
It will, therefore, be certified accordingly to tbe Superior Court.
In plaintiff’s appeal, New trial.
In defendants’ appeal, No error.