(after stating the facts). The only question presented by the appeal in this case, is whether there was error in the conclusion of the law and the judgment as announced by His Honor in the court below, “That the Superior Court in Term time had no jurisdiction to grant the motion of E. B. Wilkerson in regard to George D. Olds and Lewis Latham, made in this cause. That a motion in the cause is not the proper remedy,” and the judgment of the Court that “the motion be denied and that said Olds and Latham go, without day, and recover their reasonable costs on said motion to be taxed.”

We are of opinion there was no error. The action was a special proceeding bj' petition, filed before the Clerk of the Superior Court, by the administrator of James W. Gaylord, against the *413 defendant's heirs-at-law, to sell the land described in the petition to make assets to pay the debts of his intestate. The case was transferred to the Superior Court in Term, but upon what ground the record does not disclose, but we presume it was to try the issues raised by the pleadings, as there was no appeal to the Judge to decide any question of law raised before the Clerk. If we are correct in this, then as soon as the issues were tried, it was the duty of the Clerk, not the Judge, to make parties, and all necessary orders, and proceed with the case to final judgment. Brittain v. Mull, 91 N. C., 498. But the record does not show that any issues were tried, or transferred to the issue docket, and yet the Judge of the Superior Court in term took jurisdiction of the case and proceeded from time to time to make orders and decrees in the cause, which were clearly extrajudicial. Such was the order made, upon the motion of E. B. 'Wilkerson, to bring George Olds and Lewis Latham before the Court, to answer the allegations she made in support of her motion to compel them to contribute for money she had advanced in payment of a judgment against the estate of her ancestor, James W. Gaylord. It strikes us as an anomalous proceeding. It was an attempt to foist on a special proceeding, of which the Clerk of the Court alone had jurisdiction, a cause of action of which the Superior Court in Term had exclusive jurisdiction. For an action for contribution, when the sum demanded is over two hundred dollars, the Superior Court in term has exclusive cognizance. The only exception to this is the remedy given by section 1534 of The Code, which provides that “The remedy to compel contribution shall be by petition or action in the Superior Court, or before the Judge in term time, against the personal representative, devisees, legatees and heirs also of the decedent, if any part of the real estate be undevised, within two years after probate of the will, and setting forth the facts which entitle the party to relief, and the costs shall be within the discretion of the Court.”

*414 The very terms of the section show that it applies only to contributions among persons darning as devisees under a will, ancl heirs-at-law of the testator to whom undevised land has descended. It clearly has no application to contributions among tenants in common who claim by descent, as in our case. The conclusion and ruling of His Honor in the Court below is sustained by the decision in Battle v. Duncan, 90 N. C., 546, where it was held that in a petition to sell land for assets to pay debts, a mortgagee of the interest of one of the heirs-at-law, cannot be admitted as a party defendant, and that such a claim cannot be set up in proceeding of that nature.

There is no error. The judgment of the Superior Court is affirmed, and the case remanded that the Clerk of the Superior Court of Beaufort county may proceed with the case according to law.

No error. Affirmed.