Newsome v. Harrell, 168 N.C. 295 (1915)

Feb. 24, 1915 · Supreme Court of North Carolina

168 N.C. 295

J. A. NEWSOME v. EULA HARRELL et al.

(Filed 24 February, 1915.)

1. Partition — Owelty—Charge Upon Land — Life Tenant — Limitation of Actions.

In a division of land by a voluntary deed of partition among tenants in common, subject to tbe life estate of another, charging one of the parts owelty in a certain sum, the ten-year statute bars the right of recovery for the charge of owelty upon the land and begins to run during the life estate to which the land is subjected.

2. Partition — Owelty—Charge Upon Lands — Personal Judgment — Personal Representatives — Parties.

Where tenants in common have made a voluntary partition of lands by a division deed, charging one of the shares with owelty, and the owner thereof has since died, devising his lot to his wife, in an action brought to recover judgment for the amount of the owelty and declare the judgment a lien on the land, no personal judgment can be rendered against the defendant or the personal representative of the deceased, and the latter is not a necessary party.

Appeai, by defendants from Bond, at Fall Term, 1914, of HeRt-eord.

No counsel for plaintiff.

Winborne & Winborne for defendants.

OiARK, C. J.

This is an action to recover owelty of partition, $350, and that the judgment be declared a lien on the land owned by the defendant.

On 17 December, 1902, the tenants in common divided the land by a voluntary partition into five shares, subject to the life estate of their father, and executed a division deed. The plaintiff drew lot No. 2 and his brother Valter E. Newsome drew lot No. 1, which was to pay lot No. 2 $350 owelty. Valter Newsome died and devised the lot No. 1 to his wife, the feme defendant. The life tenant died 1 December, 1907. The defendant pleads the statute of limitations, and’the only question before the Court is, “Is the $350 charge barred by the statute of limitations ?”

The procedure for enforcing the payment of owelty in a judicial proceeding is by execution. Ex parte Smith, 134 N. C., 499; 3 Pell’s Revisal, sec. 2495; Laws 1911, ch. 9.

The procedure for enforcing the payment of owelty in partition by agreement is by action in the Superior Court. Sumner v. Early, 134 N. C., 233; Keener v. Den, 73 N. C., 132.

Proceedings to enforce payment of owelty in judicial partition is barred by ten yeárs statute of limitations. Ex parte Smith, 134 N. C., 495. Tbe existence of a life estate does not prevent tbe running of interest or tbe statute of limitations except as to minors. Rev., 2497. Turpin v. Kelly, 35 N. C., 399.

Does tbe ten-year statute bar tbe collection of tbe charge when tbe partition is by agreement ? Since it must be collected by action, tbe ten-year statute bars. Rev., 399. When tbe sum is a lien or a charge on land, tbe ten-year statute applies. Astor v. Galloway, 38 N. C., 126; Rice v. Rice, 115 N. C., 43; Allen v. Allen, 121 N. C., 334. Tbe plaintiff was not prevented from bringing this action during tbe life estate.

If tbe sum sued for was simply a personal debt, tbe three years statute of limitations would apply. Rice v. Rice, 115 N. C., 43. But this action is to enforce tbe charge upon tbe land, and no personal judgment can be rendered against tbe defendants or tbe personal representative of New-some. Halso v. Cole, 82 N. C., 161; Waring v. Wadsworth, 80 N. C., 345. Tbe personal representative is not necessary in this action to enforce tbe charge on the land. Lee v. Bure, 82 N. C., 428; s. c., 93 N. C., 5.

The headnote In re Ausborn, 122 N. C., 42, that tbe statute of limitations does not run against a charge upon land for owelty in partition, is corrected after full discussion in Smith ex parte, 134 N. C., 497.

Tbe plea of tbe statute of limitations should have been sustained.

Reversed.