King v. Powell, 127 N.C. 10 (1900)

Oct. 9, 1900 · Supreme Court of North Carolina

127 N.C. 10

KING v. POWELL.

(October 9, 1900.)

Limitations, Statute of — Pleading—Demurrer—Answer.

The statute of limitations can not be set up by demurrer, but must be specially pleaded in the answer.

ActioN by J. G. King against A. M. Powell and another, to enforce a judgment lien against certain land, beard by Judge II. R. Siarbuch, at March Term, 1900, of Warken Superior Court. From a judgment sustaining a demurrer to tbe complaint, tbe plaintiff appealed.

Oooh & Green, for plaintiff.

Pittman & Kerr, for defendant.

Faircloth, C. J.

The plaintiff had a docketed judgment against W. W. Powell, who conveyed his tract of land to A. M. Powell and John Powell after said judgment was docketed. The plaintiff institutes this action for an order to sell said land to satisfy said judgment. The defendants demur to the complaint on the ground that it appears therein that the plaintiff’s lien had expired and was lost by the lapse of time. The demurrer was sustained, his Honor bolding that the complaint stated no cause of action against the defendants. The plaintiff excepted, and appealed.

We express no opinion on tbe point decided by bis Honor, for tbe reason tbat tbe statute of limitations can not be set up by demurrer. Bacon v. Berry, 85 N. C., 124. Tbe objection tbat tbe action was not commenced witbin tbe time limited can only be taken by answer. Code, sec. 138; Green v. Railroad Co., 73 N. C., 524; Kahnweiler v. Anderson, 78 N. C., 133; Bank v. Loughran, 122 .N C., 668. The Code requires tbe statute of limitations to be specially pleaded, whether tbe cause of action be legal or equitable. Guthrie v. Bacon, 107 N. C., 337.

Error. Reversed.