It is a practice approved in our decisions tbat where a cause is called for trial and tbe statute of limitations having been properly pleaded it appears from tbe face of tbe complaint and tbe uncontro-verted facts tbat tbe -plaintiff’s cause of action is barred by statutory limitation of time, a judgment of nonsuit or dismissing tbe action on tbat ground will not be disturbed, though there may be valid exceptions for error in other phases of tbe trial. Rankin v. Oates, 183 N. C., 518; Earnhart v. Comrs., 157 N. C., 234-236; Oldham v. Rieger, 145 N. C., 254; Cherry v. Canal Co., 140 N. C., 422.
And especially is such course permissible where, as in' this case, tbe parties have requested tbe court to dispose of tbe case on tbe question suggested.
*62This, then, being in accord with our procedure, tbe court clearly bad tbe right to determine tbe controversy on perusal of tbe pleadings, and in our opinion bas correctly ruled that in any aspect of tbe matter tbe plaintiffs’ cause is barred by tbe statute of limitations applicable.
As we understand tbe record, tbe gravamen of tbis demand is for a breach of duty on tbe part of S. ~W. Latham, deceased, as executor of bis father, E. P. Latham, and for breaches of trust under bis said will, in that without legal cause be bas procured a sale by court decree of a large landed, estate of F. P. Latham, amounting to six thousand acres or more, to pay debts not exceeding $5,000, and bas by tbe intervention of nominal parties, bought in said estate and taken title thereto, or tbe greater part of it, for $1,959, and a mere nominal consideration, and after occupying said property under said deeds since said sale and conveyances, be bas sold and conveyed tbe same to innocent purchasers for value, who now have and bold tbe title unimpeachable by action or otherwise on plaintiffs’ part, and tbe relief demanded being against S. "W. Latham and bis successors, in interest for $92,000 damages incident to tbe fraud and breach of trust alleged against him. And tbis when it appears from tbe allegations of tbe complaint that tbe sale complained of was by regular proceedings in court, instituted in 1870, to which all of plaintiffs or their ancestors in title were duly made parties of record, when tbe deeds complained of were formally executed in 1871, and have been of record since 1888, and tbe property thereby conveyed bas been in tbe open, exclusive, continuous, and adverse possession of tbe purchaser and others claiming under him since said date, and certainly since tbe death of tbe life tenants under tbe will of E. P. Latham, to wit, Julia J. Latham, widow of E. P., who died in 1888, and A. C. Latham, a son, who died,in 1886. Recurring more particularly to tbe facts stated in tbe complaint, and tbe dates given by plaintiff in tbe amended complaint, they seem to be in full support of tbe statement from tbe carefully considered brief of defendant’s counsel:
“This suit was commenced by summons dated 10 October, 1916, at which time tbe following number of years bad elapsed since tbe several dates mentioned in tbe complaint, to wit:
“Fifty years since tbe death of Frederick P. Latham, tbe testator; and tbe qualification of Samuel W. Latham as executor.
"Forty-six years since special proceedings was instituted by tbe executor for sale for assets.
“Forty-five years since tbe deeds were executed conveying tbe lands, and twenty-eight years since tbe deeds were registered.
“Forty-one years since Samuel W. Latham, executor, filed bis final account and made settlement of tbe estate.
*63 "Thirty years since Alex. C. Latham, life tenant under item 3 of the will, died; at that time his son, Alex. C. Latham, was 25 years old, and is one of the plaintiffs now living; and Mrs. G-asldll, the devisor’s daughter, and mother of the plaintiffs Gaskill, was 34 years old, and she lived until May, 1914.
"Twenty-six years since Julia J. Latham, widow .of the testator, and life tenant under item 8 of the will, died. At that time Josephine Potts, the only remainderman under said item, represented in this suit, was 55 years old.
"Twenty-one years since the death of said Josephine Potts, and at the time of her death her youngest child was 22 years old.
"Seventeen years since coverture was a bar to the plea of adverse possession.
“When the suit was started the youngest plaintiff was 43 years old and the oldest plaintiff was 55 years old.”
Assuming that the allegations of the complaint' are broad enough to constitute and include a direct demand against S. "W". Latham for malfeasance as executor, our decisions hold that the relationship between such and the beneficiaries of the estate becomes adversary in two years from his qualification, and such a claim will be barred, at most, within ten years from that date. Brown v. Wilson, 174 N. C., 668; Edwards v. Lemmons, 136 N. C., 329.
Considering the complaint as a demand for an accounting by a trustee under the terms of the will, the devise to S. W. Latham in trust to collect and apply the rents and hires and interest, etc., of said estate to the support of A. C. Latham and his family during the life of A. 0. Latham, and then to convey to his child or children, etc. This estate, constituting an active trust during the life of A. 0. Latham, would become passive at his death, which occurred in 1886, and from that date the parties would be in an adverse relation to each other, putting the statute in motion and the claim on that account would be barred, at the furthest, in ten years from the death of A. C. Latham. Rouse v. Rouse, 176 N. C., 171. Assuredly so when there had been an open and avowed repudiation of any and all relationship as trustee. Rouse v. Rouse, supra; University v. Banh, 96 N. C., 280.
Plaintiffs, however, contend that this is an action based upon the fraud of defendants, or their predecessor, S. W. Latham, whereby they have been wrongfully deprived of their property, and that the same comes under C. S., 441, subsee. 9, by which their claim is only barred within three years from the discovery of the facts constituting the fraud.
Conceding that plaintiffs’ statement brings his cause within purview of this section, and undoubtedly this is the intent and purpose of the complaint, we have held in numerous decisions that under this clause an *64action is barred witbin three years from the discovery of the facts or from the time when they should have been discovered in the exercise of proper diligence or reasonable business prudence. In re Johnson, 182 N. C.; 525-527; Sanderlin v. Gross, 172 N. C., 234-242; Ewbank v. Lyman, 170 N. C., 505-508; Jeferson v. Lumber Co., 165 N. C., 49; Sinclair v. Teal, 156 N. C., 458; Peacock v. Barnes, 142 N. C., 215.
On this question, in Johnson's case, supra, quoting with approval from Peacock v. Barnes, supra, the Court said: “We do not hold, as. appellant contends, that the statute begins to run from the actual discovery of the fraud, absolutely and regardless of any negligence or laches of the party aggrieved. A man should not be allowed to close his eyes to facts observable by ordinary attention and maintain for his own advantage the position of ignorance. Such a principle would enable a careless man, and by reason of his carelessness, to extend his right to recover for an indefinite length of time, and thus defeat the very purpose the statute was designed and framed to accomplish. In such case,, a man’s failure to note facts must be imputed to him for knowledge, and in the absence-of some actual effort to conceal a fraud or some of the essential facts embraced in the inquiry, we think the correct interpretation of the statute should be that the cause of action shall be deemed to have accrued from the time the fraud was known or should have been discovered in the exercise of ordinary diligence."
It is insisted for the appellants that their cause does not come within the effects of this principle as a conclusion of law by reason of allegations in the complaint to the effect that one or more of plaintiffs were nonresident, and that S. W. Latham, who was their uncle, had told them that he had a life estate in the property, and that appellants’ right and interest therein would not accrue until his death, but on the facts of this record, such a general averment is entirely insufficient to repel the bar of the statute or to raise any issue concerning it.
So far as the alleged nonresidence is concerned, it is well recognized that nonresidence of a claimant has no direct effect on the running of the statute of limitations (Ewbank v. Lyman, supra), and on the general allegations of information by S. W. Latham, the uncle, there was no claim that any trust or sj)ecial confidence existed between these parties that might lead the one to depend upon the other, and so far as appears, they were all adult, and had been for many years, dealing at arms length with each other, and if any such statement was made, it would be entirely insufficient to qualify or affect the rights of the parties when it appeared that for 46 years there had been an open and notorious repudiation of any and all trust relationship, when every essential fact now made the basis of plaintiffs’ claim was in great part set forth of record in a judicial proceeding to which the ancestors in title of these plaintiffs *65were duly made parties, and wben further there had been open, notorious possession of the property in the assertion of ownership under deeds of record since 1888, and which had been made pursuant to decrees had in the judicial proceedings referred to. The cause, therefore, comes clearly within the well considered decisions of the court in which claimants were affected with knowledge and notice of the facts in impeachment of their claim. Sanderlin v. Cross, 172 N. C., 234-243; Ewbank v. Lyman, 170 N. C., 505; Coxe v. Carson, 169 N. C., 132; Dunn v. Beaman, 126 N. C., 771; Cox v. Brower, 114 N. C., 422.
In Sanderlin v. Cross, supra, speaking in reference to knowledge or notice of impeaching facts disclosed of record, Allen, J., among other things, said: “It is true that in several of the eases, such as Modlin v. R. R., 145 N. C., 226; Tuttle v. Tuttle, 146 N. C., 493, and others, it is said that the registration of a deed is not sufficient to put a party on notice that a fraud has been committed; but in those cases the action was based on fraudulent representations in procuring a deed, and the record did not disclose any fraud or violation of trust, while in this case the record shows all of the facts for which the plaintiffs contend, and, in addition, there is the circumstance of possession.”
The case then quotes with approval from Beaman’s case, 126 N. C., as follows: “The case of Dunn v. Beaman, 126 N. C., 771, is strong authority for the position that when the facts appear on the record, the party is affected with notice. In that case a valuable tract of land was devised in 1844 to the children of John E. Beaman. The father qualified as guardian for the children, and filed an ex parte petition for a sale, of the land for partition, and the land was sold and the sale confirmed, and the guardian received the purchase money. The children of Mr. Beaman did not know until within three years prior to the institution of their action that any land had ever been devised to them, or that their father was their guardian, or that the land had been sold. They presented their claim against the estate for the purchase money of the land, and having been made parties to a creditor’s bill, one of the creditors pleaded the statute of limitations to the claim, and the children, while disavowing any charge of intentional fraud upon. the part of their father, replied that they had discovered the facts within three years. The contention was not sustained, and it was held that their cause of action was barred.”
The Court said: “The children had legal notice of the facts. The will of Carraway, under which their title accrued, was probated and recorded in 1844, and the land devised to them was sold for partition in 1861 at the courthouse door after due advertisement under a decree in equity; the proceedings in equity were duly recorded, to which three of ■ the children, who were adults, together with their husbands, were parties *66praying the sale, and the decree of confirmation was properly enrolled. The deed from the clerk and master to the purchaser was duly recorded in the register’s office, and was notice to the children as well as to all the world, and they were put on notice by the recitals therein contained.”
And on the effects and policy of statutes of presumption and limitations in cases where there has been long and inexcusable delay, Burwell, J., in Cox v. Brower, supra, said: “The rule of presumption, when traced to its foundation, is a rule of convenience and policy, the result of a necessary regard to the peace and security of society. No person ought to be permitted to lie by whilst transactions can be fairly investigated and justly determined until time has involved them in uncertainty and obscurity, and then ask for an inquiry. Justice cannot be satisfactorily done when parties and witnesses are dead, vouchers lost or thrown away, and a new generation has appeared on the stage of life, unacquainted with the affairs of a past age, and often regardless of them. Papérs which our predecessors have carefully preserved are often thrown aside or scattered as useless by their successors. It has been truly said that if families were compelled to preserve them they would accumulate to a burdensome extent. Hence, statutes of limitation have been enacted jn all civilized communities, and in cases not within them, prescription or presumption is called in as an indispensable auxiliary to the administration of justice.”
• On careful consideration, we find no error in the record, and the judgment of the court dismissing the action is
Affirmed.