The assignments of error brought forward by appellants on this appeal are pivoted, in the main, upon the question as to whether defendants, other than Mrs. Alley, were parties to the.former action or proceeding of Whitehurst v. Hinton, 209 N.C. 392, 184 S.E. 66, in which the judgment of Devin, Judge presiding, was entered at June Term, 1934, of Superior Court of Pasquotank County. As to this it appears from the record in that action or proceeding that this very question was presented to the court, and decided adversely to the contention now made by appellants that they were not such parties. And the decision so made was challenged, but not reversed on appeal to this Court. Hence the fact that defendants were parties to that action or proceeding is now res judicata.
However, in this connection it is not inappropriate to state that the record of the attempted appointment of a bank as general guardian of defendants here, then minors, prior to the institution of the former action or proceeding, is so incomplete and irregular that it might well have been doubted that either the cashier of the bank, or the bank itself, was vested with authority to represent the minors. Under such circumstances, the appointment of a guardian ad litem for the minors to represent them in the former action or proceeding, was not so defective as to render it invalid. Indeed, their mother was appointed guardian ad litem for them, and the record fails to show that the minors were disadvantaged by the judgment in the action or proceeding. The Court held that they and their codefendants, and the plaintiffs, as the only heirs at law of John L. Hinton, deceased, living at the date of the commencement of that action or proceeding as tenants in common, were then seized in fee, and in the possession of all the lands owned by John L. Hinton at the date of his death. And the land here involved was owned by John L. Hinton at his death.
Therefore, since as between tenants in common, title to real property may not be ripened by adverse possession in less than twenty years, Parham v. Henley, 224 N.C. 405, 30 S.E. 2d 372, sufficient time between the date of the judgment of June, 1934, and the date of the institution of the present action, has not elapsed to avail defendants any advantage by any adverse possession they may have had during that period of time.
*22It is further contended by appellants that the present action abates by reason of the pendency of the former action of Whitehurst v. Hinton, 209 N.C. 392, and S. c., 222 N.C. 85. On the other hand, appellees say the question is not properly presented on this record. But be that as it may, the point is not well taken. It must be borne in mind that abatement of an action because of the pendency of another action, takes place only when there is identity of parties and of subject matter in the two actions. See Taylor v. Schaub, 225 N.C. 134, 33 S.E. 2d 658.
Tested by this principle of law, it is true that in the present case the tract of land on which the waste is alleged to have been committed, is one of the vast number of tracts of land sought to be partitioned in the former action, supra. It is also true that the plaintiffs in the present action are the petitioners or plaintiffs in the former action, and that the defendants in the present action are some of the defendants in the former action. And it is true that in the complaint in the former action there are general allegations of waste, — without specifying any particular tract of land on which waste was committed, and without charging any particular defendant with acts of waste. Moreover, in the former action injunction against further waste was not sought. On the other hand, the present action relates to acts of waste subsequent in time and entirely independent of .those alleged in the “petition and complaint” in the former action. And here injunction against waste then being committed, and against further acts of waste is sought. The causes of action are different in the two actions, and the results sought are dissimilar. Indeed, a final judgment in the former action would not support a plea of res judicata in the present action. This, it is held, is one of the tests of identity. Bank v. Broadhurst, 197 N.C. 365, 148 S.E. 452; Brown v. Polk, 201 N.C. 375, 160 S.E. 357; Taylor v. Schaub, supra.
Thus after full consideration of all assignments of error, and arguments of counsel, in brief filed and orally before the Court, presented by appellants in support thereof, no error is made to appear, and the judgment below is
DeviN, J., took no part in consideration or decision of this appeal.