The opinion
Davis, J.,
(after stating the case). The case is governed, not by the statute of limitations, but by the statute of presumptions, in force prior to August 24th, 1868. That stat
*522
ute (Rev. Code, Ch. 65, §19,) provides, that
“
the presumption of payment or abandonment of the right of redemption of mortgages, and of other equitable interests, shall arise-within ten years after the forfeiture of said mortgage,” &c. “ The statute,” says Ruffin, J., in
Headen
v.
Womack,
88 N. C., 468 , “ is so emphatically a statute of repose, that no saving is made in it of the rights of infants,
femes covert,
or
persons,non compos mentis,”
and the
provisos
in behalf of infants and certain other classes of persons contained in §§9 and 10 of that chapter, have no application.
Campbell
v.
Brown,
86 N. C., 376 , and the cases there cited.
When the facts are admitted or proved, the presumption “ becomes a conclusion of
law from facts,
to be applied by the Court, and not left to the discretion of the jury.”
The cases above cited, and the authorities by which they are supported, leave no doubt as to the construction to be placed on §19, Ch. 65, of the Revised Code. It was a statute of
repose,
and whether his Honor was correct or not — in holding that the deajh of David Houck, Sr., must be taken from the evidence to have occurred in 1849 — the issue was immaterial, and whether answered one way or the other, could not affect the legal result.
The refusal to submit an immaterial issue, which can in no way affect the merits of the case, cannot be assigned as error.
Perry
v.
Jackson,
88 N. C., 103 ;
McDonald
v.
Carson,
94 N. C., 497 .
In the latter case, it was said that a needless issue submitted to the jury, which could in no way be prejudicial, was not assignable as error; much less can the refusal to submit an immaterial or unnecessary issue be assigned as error.
After the trial there was a motion for a new trial, supported by an affidavit, on the ground of newly-discovered testimonj'-, which was refused. This was a matter of discretion, which can not be reviewed by this Court, and from which, as has been often held, no appeal lies.
Affirmed.