Aldridge v. Dixon, 205 N.C. 480 (1933)

Dec. 13, 1933 · Supreme Court of North Carolina

205 N.C. 480

MARTHA J. ALDRIDGE, Widow, v. C. H. DIXON, Receiver of the FIRST NATIONAL BANK OF DURHAM. N, C.; NORTH CAROLINA JOINT STOCK LAND BANK OF DURHAM, W. P. HARDY, Mortgagee, GEORGE E. SUTTON and CLAUDE ALDRIDGE, Partners, Trading as LENOIR HARDWARE COMPANY, MOLLIE DAWSON ALDRIDGE, Widow of G. T. ALDRIDGE, Deceased; HARRY ALDRIDGE, KATHLEEN ALDRIDGE and G. T. ALDRIDGE, Jr., the Last Three Named Being Minors of the Ages of Seventeen Years, Fourteen Years, and Four Months, Respectively; and W. C. DOUGLASS, Guardian Ad Litem for Said Infant Defendants, HARRY ALDRIDGE, KATHLEEN ALDRIDGE and G. T. ALDRIDGE, Jr.

(Filed 13 December, 1933.)

1. Limitation of Actions B a — Action against land to enforce decree for owelty accrues from date of judgment.

Where a petition in partition is filed, and the petitioners enter into possession of their respective shares, in accordance with the judgment of partition therein entered, and it is therein provided that the widow of the intestate should receive a certain sum monthly in lieu of dower, which sum is made a lien upon the lands, an action by the widow to enforce her claim against the land is barred after the lapse of more than ten years from the partition and decree of owelty, C. S., 445, and the. fact that a second decree of confirmation was entered in the case several years thereafter for the purpose of recording the papers, the original papers having been destroyed by fire, does not alter this result.

a. Appeal and Error E g—

The record on appeal imports verity.

3. Appeal and Error J g—

AVhere plaintiff’s cause of action is barred by the statute of limitations set up by defendant, other defenses interposed by defendant need not be considered.

Appeal by plaintiff from Harris, J., at June Term, 1933, of LeNOie. No error.

An agreed statement of case on appeal, in part, is as follows; “This action was instituted by the plaintiff for the purpose of enforcing a lien claimed by ber against tbe land described in tbe complaint by virtue of an award to ber in lieu of dower and made a charge upon tbe land described in tbe complaint. Under a petition for partition filed in November, 1920, and a subsequent and similar petition for partition filed in 1925, and under a report of commissioners and judgment of partition and decree of confirmation in said proceeding, tbe plaintiff was awarded an annuity in lieu of dower of $100.00 per year so long as sbe should live, against tbe land described in tbe complaint, tbe plaintiff claiming that nothing bad ever been paid to ber on account thereof, and that tbe lands should be subjected to tbe payment thereof, and that ber lien was a first lien against tbe same. Tbe contentions of tbe parties sufficiently appear from tbe pleadings, which are set forth in full in tbe record,” etc.

Tbe reason for tbe subsequent and similar petition for partition, filed in 1925, was: “That on account of tbe fact that a part of tbe records in tbe foregoing proceeding bad been destroyed by fire.” In regard to tbe “foregoing proceeding” tbe record discloses “that tbe report of said commissioners was duly confirmed, but tbe said report of said commissioners and tbe decree of confirmation thereof were never recorded, but were carried to tbe office of Moore & Groom in tbe building in Kinston, known as tbe Hunter Building, which was burned and tbe said report of commissioners and confirmation thereof were destroyed.”

Tbe record also discloses that “said commissioners being tbe same commissioners theretofore appointed under tbe said former proceeding, and a new report was filed by said commissioners, showing their division of said lands made during tbe year of 1920, and tbe allotment of an annuity to tbe said Martha J. Aldridge against each of tbe tracts of land allotted to tbe several tenants in common in lien of dower.”

Tbe defendants set up four material defenses: “(1) Tbe 3, 7 and 10-year statutes of limitation; (2) Tbe failure of tbe clerk to cross-index tbe charge against tbe land; (3) Tbe plaintiff ‘agreed and did relinquish and waive any right or interest ivhich sbe bad, or might hereafter acquire, in and to tbe land described in tbe complaint, which agreement is pleaded in bar of tbe plaintiff’s right to recover.’ (4) Tbe execution of a deed of trust from G. T. Aldridge and wife to W. H. Allen, trustee for Martha J. Aldridge, to secure the sum of $1,083.15, which defendants allege was given in satisfaction and release of any past or future indebtedness ‘created by reason of tbe charge referred to in tbe complaint against tbe tract of land allotted to G. T. Aldridge.’ ”

In tbe answer C. H. Dixon, receiver of First National Bank of Durham, N. C., trustee for tbe Joint Stock Land Bank of Durham, who claimed priority of lien over plaintiff by deed in trust made by G. T. Aldridge and wife Mollie Dawson Aldridge, to secure $1,500, recorded 31 July, 1926, Book 91, page 238, registry for Lenoir County, N. O., is tbe following: “That if tbe plaintiff bad any cause of action against these defendants, wbicb is specifically denied, then tbe said cause of action accrued more than ten years prior to tbe institution of tbis action; and tbe ten-year statute of limitations, as provided by C. S., 445, and other provisions of tbe statutes, is hereby specifically pleaded in bar of the right of the plaintiff to recover against these defendants, or to charge said land as prayed for.”

Tbe following judgment was rendered in tbe court below: “Tbis cause coming on to be beard, and being beard at tbis tbe June Term, Superior Court of Lenoir County, before bis Honor, W. G. Harris, judge, and tbe court being of tbe opinion at tbe close of plaintiff’s evidence that she is not entitled to recover: It is now, therefore, upon motion of counsel for tbe defendants, considered, ordered and adjudged that tbis action be and tbe same is hereby dismissed as of nonsuit and that tbe plaintiff pay tbe costs to be taxed by tbe clerk.”

Plaintiff made numerous exceptions and assignments of error and appealed to tbe Supreme Court. Tbe necessary one and relevant facts will be considered in tbe opinion.

Dortch & Smith and Wallace & White for plaintiff.

Langston, Allen & Taylor for defendants.

ClabKSON, J.

For a decision of tbis action -we think it necessary to consider only one aspect of tbis controversy: Was plaintiff’s action barred by tbe ten-year statute of limitations, O. S., 445? We think so.

In Moore v. Charlotte, 204 N. C., 37 (39), is tbe following: “Where tbe defendant properly pleads a statute of limitations the burden is on tbe plaintiff to show that tbe action was brought -within the time limit fixed by tbe statute pleaded, or in other words it is not barred by tbe statute that is pleaded. Tillery v. Lumber Co., 172 N. C., 296; Marks v. McLeod, 203 N. C., at p. 258-9.” Wilkes County v. Forester, 204 N. C., 163 (165) ; Drinkwater v. Tel. Co., 204 N. C., 224.

Tbe plaintiff in her brief says: “Tbe right of tbe plaintiff to enforce her lien upon tbe land is barred only in ten years from tbe signing of tbe decree of confirmation, and tbe decree of confirmation was signed in 1925, and tbis action was instituted in August, 1932. Therefore, tbe defendants’ plea of tbe ten-year statute avails them nothing. It may be contended by tbe defendants and it was so argued by them in tbe court below, that tbe charge wbicb plaintiff seeks to enforce is a charge of owelty of partition. Even if tbe court should so construe tbis charge it is enforceable as such at any time within ten years after tbe signing of tbe decree of confirmation. McIntosh, sec. 940, p. 1065; Ex Parte Smith, 134 N. C., 495; Herman v. Watts, 107 N. C., 649.”

We set forth wliat this Court said in Smith, Ex Parte, supra, at p. 500-1: “We cannot see why the statute should not apply. It is true the charge rests upon the land alone, and it has been said that the land is the debtor and that there is no personal liability of its owner. But how can this affect the question one way or another. The statute, whether of presumptions or limitations, operates against the actor or the party who must seek to apply the remedy and it affects only the remedy. If, therefore, he who has the right to enforce the charge against the land delays in doing so for the time limited by the statute, the bar operates without regard to the particular nature of the charge or lien which is to be enforced or eren to the form of the remedy. It is a familiar principle that the statute of limitations affects not the right but the remedy. Besides, so far as the nature of the lien or charge is concerned, if we consider the matter with reference to that alone and without regard to the remedy, the case comes not only within the spirit but within the letter of the statute, which decree shall be barred if it is not brought within ten years from the date of the rendition of the same.” Lilly v. West, 97 N. C., 276 (279); McLeod v. Williams, 122 N. C., 451; Bank v. Swink, 129 N. C., 255; Hyman v. Jones, ante, 266.

The plaintiff testified, in part: “After the division of the land under the petition recorded 15 December, 1920, and recorded in orders and decrees, K, pages 16 to 19, each one of the children went into possession of his respective share of land under said petition, that is, all that were of age. . '. . My son, G-. T. Aldridge, went into possession of his share allotted to him in the fall of 1920, right after it was divided. He remained in possession until 1931, when he died.”

The plaintiff contends that: “The defendants, in pleading the ten-year’ statute, evidently overlooked the fact that the only decree on record confirming the division was rendered in 1925, from which time the statute would begin to run.”

In answer, the defendants in their brief say: “It is apparent, therefore, that counsel for the plaintiff have switched their position considerably since the trial of this cause as will appear from their brief in that they now take the position that the proceeding under which they claim was begun in 1925. They undoubtedly see that if their first position was insisted upon that the statute of limitation bars their claim for more than ten years has elapsed since the first order of confirmation. The second proceeding referred to in 1925, as will appear from the complaint, was simply in the nature of reinstating and supplying the lost papers for the purpose of recording same.”

The summons in this action was issued 15 August, 1932. The record discloses that the petition for partition was filed in November, 1920, and plaintiff testified that G-. T. Aldridge went into possession of his share allotted to him in the fall of 1920, right after it was divided. The record also discloses “showing their division of said lands made during the year 1920.”

We are bound by the record, it imports verity and we cannot go behind it. “The Supreme Court, on appeal, is bound by the record.” Higgs-Taft Furniture Co. v. Clark, 191 N. C., 369; Fochtman v. Greer. 194 N. C., 674.

It is a serious question if the other defenses set up by defendant are not also available, but we need not consider them, as the defense of the statute of limitation bars plaintiff’s right to recovery. In law we see

No error.