SUBCHAPTER I. DEFINITIONS AND GENERAL PROVISIONS.

ARTICLE 1. Definitions.

Sec.

§ 1-1. Remedies.

Remedies in the courts of justice are divided into -

  1. Actions.
  2. Special proceedings.

History

(C.C.P., s. 1; Code, s. 125; Rev., s. 346; C.S., s. 391.)

Cross References. - For Rules of Civil Procedure, see Chapter 1A.

CASE NOTES

References to Superior Court Deemed to Refer Also to District Court. - Following the provisions of G.S. 7A-193, the references in Chapter 1 of the General Statutes to the superior court are deemed to refer also to the district court. Boston v. Freeman, 6 N.C. App. 736, 171 S.E.2d 206 (1969).

Admission of Patient to Hospital for Mentally Ill. - A proceeding in accordance with the provisions of G.S. 122-36 et seq. (see now G.S. 122C-341 et seq.), in strictness, seems to be neither a civil action nor a special proceeding, notwithstanding this section. In re Cook, 218 N.C. 384, 11 S.E.2d 142 (1940).

Exhaustion of Remedies. - Individual's constitutional claims against the sheriff, the sheriff's department, the county, and the detective, based upon the stopping, searching, and detaining of the individual and the retention of his property, were dismissed because the existing common law remedies of false imprisonment, trespass to chattels, and negligence were appropriate alternatives under the facts alleged in the complaint, and waiver of governmental immunity was not pleaded. Seaton v. Owens, - F. Supp. 2d - (M.D.N.C. Dec. 8, 2003).

Civil Actions or Special Proceedings. - Trial court erred in denying the father's motion to set aside the order entered against him that terminated his parental rights in his minor daughter; the record showed that the summons that was issued in his case was not served upon him within the time limit for service of process under the civil procedure rule then in effect and since that rule applied to civil actions or special proceedings such as a termination of parental rights case, the order was entered without the trial court having acquired personal jurisdiction over the father, and thus was void. In re A.B.D., 173 N.C. App. 77, 617 S.E.2d 707 (2005).

Applied in Phil Mechanic Constr. Co. v. Haywood, 72 N.C. App. 318, 325 S.E.2d 1 (1985); In re Dunn, 73 N.C. App. 243, 326 S.E.2d 309 (1985); In re McKinney, 158 N.C. App. 441, 581 S.E.2d 793 (2003); Keith v. Wallerich, 201 N.C. App. 550, 687 S.E.2d 299 (2009); In re Hughes, 245 N.C. App. 398, 785 S.E.2d 111 (2016).

Cited in In re Clark, 303 N.C. 592, 281 S.E.2d 47 (1981); VEPCO v. Tillett, 73 N.C. App. 512, 327 S.E.2d 2 (1985); Ocean Hill Joint Venture v. North Carolina Dep't of Environment, Health & Natural Resources, 333 N.C. 318, 426 S.E.2d 274 (1993).


§ 1-2. Actions.

An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment or prevention of a public offense.

History

(C.C.P., s. 2; 1868-9, c. 277, s. 2; Code, s. 126; Rev., s. 347; C.S., s. 392.)

CASE NOTES

Administrative Proceedings. - Court of Appeals erred in affirming an order by trial court finding that a corporation engaged in the unauthorized practice of law by appearing through a corporate officer before the Department of Motor Vehicles because an administrative agency was not an "action or proceeding" and, thus, a nonattorney could appear or proceed on behalf of a corporation before an administrative hearing officer without engaging in the unauthorized practice of law. In re Twin County Motorsports, Inc., 367 N.C. 613, 766 S.E.2d 832 (2014).

An inquisition of lunacy is not a civil action as defined in this section. In re Dunn, 239 N.C. 378, 79 S.E.2d 921 (1954).

Ex Parte Proceedings. - Appellate court had jurisdiction to review ex parte orders to release defendant's personnel and educational records because (1) the orders were treated as final judgments in a special proceeding, as an attempt to incorporate the records into defendant's criminal file was error, and no civil case existed, and (2) the appellate court exercised the court's discretion to treat defendant's brief as a certiorari petition as to orders defendant's notice of appeal did not reference, as required. State v. Santifort, 257 N.C. App. 211, 809 S.E.2d 213 (2017).

Applied in Phil Mechanic Constr. Co. v. Haywood, 72 N.C. App. 318, 325 S.E.2d 1 (1985); Keith v. Wallerich, 201 N.C. App. 550, 687 S.E.2d 299 (2009); Pay Tel Communs., Inc. v. Caldwell County, 203 N.C. App. 692, 692 S.E.2d 885 (2010).

Cited in Gillikin v. Gillikin, 248 N.C. 710, 104 S.E.2d 861 (1958); In re Albemarle Mental Health Center, 42 N.C. App. 292, 256 S.E.2d 818 (1979); In re Clark, 303 N.C. 592, 281 S.E.2d 47 (1981); Charns v. Brown, 129 N.C. App. 635, 502 S.E.2d 7, cert. denied, 349 N.C. 228, 515 S.E.2d 701 (1998); In re Brooks, 143 N.C. App. 601, 548 S.E.2d 748 (2001); In re Investigation of the Death of Miller, 357 N.C. 316, 584 S.E.2d 772 (2003); In re Summons Issued to Ernst & Young, LLP, 191 N.C. App. 668, 663 S.E.2d 921 (2008), rev'd in part on other grounds, and remanded, 363 N.C. 612, 684 S.E.2d 151, 2009 N.C. LEXIS 897 (2009); Cole v. N.C. Dep't of Pub. Safety, 253 N.C. App. 270, 800 S.E.2d 708 (2017), review denied, 2017 N.C. LEXIS 593 (N.C. 2017).


§ 1-3. Special proceedings.

Every other remedy is a special proceeding.

History

(C.C.P., s. 3; Code, s. 127; Rev., s. 348; C.S., s. 393.)

Cross References. - As to special proceedings generally, see G.S. 1-393.

As to special proceeding for partition of real estate, see G.S. 46A-1.

As to special proceeding in allotment of year's allowance, see G.S. 30-27 et seq.

CASE NOTES

What Are Special Proceedings. - Any proceedings which prior to the Code of Civil Procedure might have been commenced by petition or by motion on notice, such as proceedings for dower, partition and year's allowance, are special proceedings under this section. Tate v. Powe, 64 N.C. 644 (1870); Felton v. Elliott, 66 N.C. 195 (1872).

One test of a special proceeding is whether or not existing statutes direct a procedure different from the ordinary. Woodley v. Gilliam, 64 N.C. 649 (1870).

Proceedings in bastardy are special proceedings. State v. McIntosh, 64 N.C. 607 (1870).

Proceedings to obtain damages for injuries to land caused by erection of a mill are special proceedings because made so by the statute creating a statutory remedy. Sumner v. Miller, 64 N.C. 688 (1870).

A petition by an administrator to sell lands for the payments of debts is a special proceeding. Hyman v. Jarnigan, 65 N.C. 96 (1871); Badger v. Jones, 66 N.C. 305 (1872).

An action to recover the possession of land, such as ejectment, is not a special proceeding. Woodley v. Gilliam, 64 N.C. 649 (1870).

Mandamus to try title to an office is not a special proceeding. State ex rel. Howerton v. Tate, 66 N.C. 231 (1872).

An inquisition of lunacy is not a special proceeding under this section. In re Dunn, 239 N.C. 378, 79 S.E.2d 921 (1954).

Ex Parte Proceedings. - Appellate court had jurisdiction to review ex parte orders to release defendant's personnel and educational records because (1) the orders were treated as final judgments in a special proceeding, as an attempt to incorporate the records into defendant's criminal file was error, and no civil case existed, and (2) the appellate court exercised the court's discretion to treat defendant's brief as a certiorari petition as to orders defendant's notice of appeal did not reference, as required. State v. Santifort, 257 N.C. App. 211, 809 S.E.2d 213 (2017).

Applied in Phil Mechanic Constr. Co. v. Haywood, 72 N.C. App. 318, 325 S.E.2d 1 (1985); In re Summons Issued to Ernst & Young, LLP, 191 N.C. App. 668, 663 S.E.2d 921 (2008), rev'd in part on other grounds, and remanded, 363 N.C. 612, 684 S.E.2d 151, 2009 N.C. LEXIS 897 (2009); Keith v. Wallerich, 201 N.C. App. 550, 687 S.E.2d 299 (2009).

Cited in N. Jacobi Hdwe. Co. v. Jones Cotton Co., 188 N.C. 442, 124 S.E. 756 (1924); Gillikin v. Gillikin, 248 N.C. 710, 104 S.E.2d 861 (1958); In re Albemarle Mental Health Center, 42 N.C. App. 292, 256 S.E.2d 818 (1979); In re Clark, 303 N.C. 592, 281 S.E.2d 47 (1981); Ocean Hill Joint Venture v. North Carolina Dep't of Environment, Health & Natural Resources, 333 N.C. 318, 426 S.E.2d 274 (1993); In re Brooks, 143 N.C. App. 601, 548 S.E.2d 748 (2001); In re Investigation of the Death of Miller, 357 N.C. 316, 584 S.E.2d 772 (2003).


§ 1-4. Kinds of actions.

Actions are of two kinds -

  1. Civil.
  2. Criminal.

History

(C.C.P., s. 4; Code, s. 128; Rev., s. 349; C.S., s. 394.)

CASE NOTES

Ex Parte Proceedings. - Appellate court had jurisdiction to review ex parte orders to release defendant's personnel and educational records because (1) the orders were treated as final judgments in a special proceeding, as an attempt to incorporate the records into defendant's criminal file was error, and no civil case existed, and (2) the appellate court exercised the court's discretion to treat defendant's brief as a certiorari petition as to orders defendant's notice of appeal did not reference, as required. State v. Santifort, 257 N.C. App. 211, 809 S.E.2d 213 (2017).

Cited in In re Clark, 303 N.C. 592, 281 S.E.2d 47 (1981); In re King, 79 N.C. App. 139, 339 S.E.2d 87 (1986); State v. Gamez, 228 N.C. App. 329, 745 S.E.2d 876 (2013), review denied 367 N.C. 256, 749 S.E.2d 848, 2013 N.C. LEXIS 1174 (2013); State v. Gamez, - N.C. App. - , 743 S.E.2d 700 (July 2, 2013).


§ 1-5. Criminal action.

A criminal action is -

  1. An action prosecuted by the State as a party, against a person charged with a public offense, for the punishment thereof.
  2. An action prosecuted by the State, at the instance of an individual, to prevent an apprehended crime against his person or property.

History

(Const., art. 4, s. 1; C.C.P., s. 5; Code, s. 129; Rev., s. 350; C.S., s. 395.)

CASE NOTES

History. - This section worked a significant change in the law of the State with its enactment in the Code of Civil Procedure. Prior to that time "all suits prosecuted in the name of the State were not necessarily criminal suits as distinguished from civil suits - the true test being that when the proceeding was by indictment the suit was criminal, and when by action or other mode, though in the name of the State, it was a civil suit." State v. Pate, 44 N.C. 244 (1853). Hence, a warrant to keep the peace was a civil action though brought in the name of the State. See State v. Locust, 63 N.C. 574 (1869). But this section changed the rule in all such cases, the test now being whether the person is charged with a public offense or whether the action is prosecuted by the State at the instance of an individual to prevent an apprehended crime against the person or property of the individual; in either case the action being a criminal proceeding. See Bumgarner v. Corpening, 246 N.C. 40, 97 S.E.2d 427 (1957); Barbee v. Edwards, 238 N.C. 215, 77 S.E.2d 646 (1953).

An inquisition of lunacy is not a criminal action within the meaning of this section. In re Dunn, 239 N.C. 378, 79 S.E.2d 921 (1954).

Ex Parte Proceedings. - Appellate court had jurisdiction to review ex parte orders to release defendant's personnel and educational records because (1) the orders were treated as final judgments in a special proceeding, as an attempt to incorporate the records into defendant's criminal file was error, and no civil case existed, and (2) the appellate court exercised the court's discretion to treat defendant's brief as a certiorari petition as to orders defendant's notice of appeal did not reference, as required. State v. Santifort, 257 N.C. App. 211, 809 S.E.2d 213 (2017).

Private Individuals as Prosecutors. - No person is regarded as a prosecutor for a public offense unless he is so marked on the bill of indictment. State v. Lupton, 63 N.C. 483 (1869).

Section as Remedy for Defendant's Criminal Acts. - Where alleged acts of defendant are criminal, plaintiff is not entitled to equitable relief in the nature of an injunction, but is furnished an adequate remedy by this section. Carolina Motor Serv., Inc. v. Atlantic C.L.R.R., 210 N.C. 36, 185 S.E. 479, 104 A.L.R. 1165 (1936).

Remedy Against Alleged Unconstitutional Discrimination in Statutes. - By prosecuting, under this section, persons doing acts allowed by a statute, a remedy against alleged unconstitutional discrimination of such statute is afforded. Newman v. Watkins, 208 N.C. 675, 182 S.E. 453 (1935).

As to proper titles of criminal cases, see Larkins v. Murphy, 68 N.C. 381 (1873).

Applied in In re Dunn, 73 N.C. App. 243, 326 S.E.2d 309 (1985); State v. Singleton, 201 N.C. App. 620, 689 S.E.2d 562 (2010).

Cited in State v. Rumfelt, 241 N.C. 375, 85 S.E.2d 398 (1955).


§ 1-6. Civil action.

Every other is a civil action.

History

(C.C.P., s. 6; Code, s. 130; Rev., s. 351; C.S., s. 396.)

Cross References. - As to form of action, see G.S. 1A-1, Rule 2.

CASE NOTES

Court Had Jurisdiction. - Because the date a rule was to be applied fell on a Saturday, and a planning board or official had no authority to modify the provisions of a state statute by "interpretation," the adjacent property owners were not required to appeal the "interpretation" to the Board of Adjustment; thus, the trial court had jurisdiction to hear the matter. Murdock v. Chatham County, 198 N.C. App. 309, 679 S.E.2d 850 (2009), review denied, 363 N.C. 806, 690 S.E.2d 705, N.C. LEXIS 48 (2010).

Ex Parte Proceedings. - Appellate court had jurisdiction to review ex parte orders to release defendant's personnel and educational records because (1) the orders were treated as final judgments in a special proceeding, as an attempt to incorporate the records into defendant's criminal file was error, and no civil case existed, and (2) the appellate court exercised the court's discretion to treat defendant's brief as a certiorari petition as to orders defendant's notice of appeal did not reference, as required. State v. Santifort, 257 N.C. App. 211, 809 S.E.2d 213 (2017).

Applied in State v. Singleton, 201 N.C. App. 620, 689 S.E.2d 562 (2010).

Cited in Gillikin v. Gillikin, 248 N.C. 710, 104 S.E.2d 861 (1958); VEPCO v. Tillett, 73 N.C. App. 512, 327 S.E.2d 2 (1985).


§ 1-7. When court means clerk.

In the following sections which confer jurisdiction or power, or impose duties, where the words "superior court," or "court," in reference to a superior court are used, they mean the clerk of the superior court, unless otherwise specially stated, or unless reference is made to a regular session of the court, in which cases the judge of the court alone is meant.

History

(C.C.P., s. 9; Code, s. 132; Rev., s. 352; C.S., s. 397; 1971, c. 381, s. 12.)

Cross References. - As to jurisdiction of the clerk, see G.S. 1-13.

Legal Periodicals. - For discussion of this section and its history, see 1 N.C.L. Rev. 15 (1923) and 1 N.C.L. Rev. 199 (1923).

CASE NOTES

History. - It was pointed out in Brittain v. Mull, 91 N.C. 498 (1884), that the clerk does not exercise power in respect to pleadings and practice to any considerable extent in civil actions (as distinguished from special proceedings) because questions arising in such matters arise mainly in term time when the judge must act directly. This was due to the suspension act, but since the Crisp act in 1919 the rule is otherwise. See 1 N.C.L. Rev. 199 (1923).

As to the power of the legislature to confer jurisdiction upon the clerk, see Bank of N. Wilkesboro v. Wilkesboro Hotel Co., 147 N.C. 594, 61 S.E. 570 (1908).

Clerk Acts for Court. - Although the terms "court" and "superior court," as used in this section, mean the clerk of the court as indicated, the clerk is given no separate jurisdiction apart from the court itself. Insofar as civil procedure is concerned, at least, the clerk acts as and for the court in the instances specified. His acts are performed by the court through him and stand as those of the court if not excepted to and reversed or modified on appeal, and thus there is no divided jurisdiction between the clerks and the judge. The whole procedure is in the court and has its sanction. Jones v. Desern, 94 N.C. 32 (1886).

In special proceedings the clerk acts for the court in superintending the pleadings, practice and procedure, and in making all proper orders and judgments therein, unless his action is revised or modified by the judge upon appeal. Jones v. Desern, 94 N.C. 32 (1886); Adams v. Howard, 110 N.C. 15, 14 S.E. 648 (1892).

The clerk represents and is the court and has authority to exercise the discretionary powers conferred for the purpose of decreeing a sale of a decedent's estate for the payment of debts. Indeed, the clerk implies the court in cases like this. Tillett v. Aydlett, 90 N.C. 551 (1884).

This section gives the clerk power to enter a judgment for the recovery of money. Bank of N. Wilkesboro v. Wilkesboro Hotel Co., 147 N.C. 594, 61 S.E. 570 (1908).

Authority of Assistant Clerk to Tax Cost of Deposition. - An assistant clerk of the superior court had the authority to tax the cost of a deposition against a plaintiff who took a voluntary dismissal of his case before it reached the trial calendar. Thigpen v. Piver, 37 N.C. App. 382, 246 S.E.2d 67, cert. denied, 295 N.C. 653, 248 S.E.2d 257 (1978).

Jurisdiction under G.S. 26-3 is conferred upon the clerk by virtue of this section. Bank of N. Wilkesboro v. Wilkesboro Hotel Co., 147 N.C. 594, 61 S.E. 570 (1908).

The term "superior court," as used in former G.S. 28-81, means clerk of the superior court. Pelletier v. Saunders, 67 N.C. 261 (1872).

Summary Remedy Against Railroad. - Under statute providing that a summary remedy by landowners against a railroad for damages caused by construction may be begun either in or out of term by service of petition, it is proper for the judge to appoint commissioners as provided if the proceeding is begun in term, but where the proceeding is begun in vacation the clerk may act for the court. Click v. Western N.C.R.R., 98 N.C. 390, 4 S.E. 183 (1887).

Execution in Garnishment Proceedings. - In view of this section, when the judgment in garnishment proceedings under former G.S. 1-461 was entered up, the execution, which was awarded as a matter of course, could be issued by the clerk without application to the judge. Newberry v. Meadows Fertilizer Co., 206 N.C. 182, 173 S.E. 67 (1934).

Extension of Time to File Complaint. - The clerk represents and is the court by virtue of this section and has the authority to exercise the discretionary powers conferred by G.S. 1A-1, Rule 6(b) for the purpose of extending additional time in which to file a complaint. Williams v. Jennette, 77 N.C. App. 283, 335 S.E.2d 191 (1985).

Cited in Ward v. Taylor, 68 N.C. App. 74, 314 S.E.2d 814 (1984).


ARTICLE 2. General Provisions.

Sec.

§ 1-8. Remedies not merged.

Where the violation of a right admits both of a civil and a criminal remedy, the right to prosecute the one is not merged in the other.

History

(C.C.P., s. 7; Code, s. 131; Rev., s. 353; C.S., s. 398.)

CASE NOTES

Propriety of Summons Upheld. - In view of this section, it was proper to serve a summons and order of arrest upon defendant while he was confined in jail upon his failure to give an appearance bond to answer for a secret criminal assault. White v. Underwood, 125 N.C. 25, 34 S.E. 104 (1899).

Applied in Scales v. Wachovia Bank & Trust Co., 195 N.C. 772, 143 S.E. 868 (1928); Murdock v. Chatham County, 198 N.C. App. 309, 679 S.E.2d 850 (2009), review denied, 363 N.C. 806, 690 S.E.2d 705, N.C. LEXIS 48 (2010).


§ 1-9: Repealed by Session Laws 1967, c. 954, s. 4.

Cross References. - For present provision relating to one form of action, see G.S. 1A-1, Rule 2.


§ 1-10. Plaintiff and defendant.

In civil actions the party complaining is the plaintiff, and the adverse party the defendant.

History

(C.C.P., s. 13; Code, s. 134; Rev., s. 355; C.S., s. 400.)

Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 469.

§ 1-11. How party may appear.

A party may appear either in person or by attorney in actions or proceedings in which he is interested.

History

(C.C.P., s. 423; Code, s. 109; Rev., s. 356; C.S., s. 401.)

Legal Periodicals. - For note on the right to defend pro se, see 48 N.C.L. Rev. 678 (1970).

For article, "Strategies for Dealing with Self-Represented Litigants," see 30 N.C. Cent. L. Rev. 130 (2008).

CASE NOTES

The right to appear in actions either in person or by attorney is alternative, and a party has no right to "appear" both by himself and by counsel. Hamlin v. Hamlin, 302 N.C. 478, 276 S.E.2d 381 (1981).

A party has the right to appear in propria persona or, in the alternative, by counsel. There is no right to appear both in propria persona and by counsel. State v. Parton, 303 N.C. 55, 277 S.E.2d 410 (1981).

A party has the right to appear in propria persona or by counsel, but this right is alternative. State v. Phillip, 261 N.C. 263, 134 S.E.2d 386, cert. denied, 377 U.S. 1003, 84 S. Ct. 1939, 12 L. Ed. 2d 1052, rehearing denied, 379 U.S. 874, 85 S. Ct. 28, 13 L. Ed. 2d 83 (1964).

This right is alternative. A party has no right to appear both by himself and by counsel, nor should he be permitted ex gratia to do so. Abernethy v. Burns, 206 N.C. 370, 173 S.E. 899 (1934). See also, McClamroch v. Colonial Ice Co., 217 N.C. 106, 6 S.E.2d 850 (1940).

A defendant has only two choices: to appear in propria persona or, in the alternative, by counsel. There is no right to appear both in propria persona and by counsel. State v. Forrest, 164 N.C. App. 272, 596 S.E.2d 22 (2004), cert. denied, 359 N.C. 193, 607 S.E.2d 653 (2004), aff'd, - N.C. - , 611 S.E.2d 833 (2005), remanded, Forrest v. North Carolina, 126 S.C. 29777 (U.S. 2006).

No Right to Appear in Person and by Counsel at Same Time. - This section simply means that a litigant may not appear both in propria persona and by counsel at one and the same time. It cannot be construed to mean that he may not first appear in person and then later appear through counsel. Thus, a litigant who elects to employ counsel at any stage of the proceedings may not be deprived of his counsel's services for the reason that he theretofore appeared in person. New Hanover County v. Sidbury, 225 N.C. 679, 36 S.E.2d 242 (1945).

When defendant filed his prose motion for a speedy trial, he was represented by counsel; although defendant's pro se motion was filed more than a year after his arrest, his assertion of the right to a speedy trial was made in violation of the rule that a defendant did not have a right to be represented by counsel and also appear pro se. State v. Spivey, 357 N.C. 114, 579 S.E.2d 251 (2003).

Attorney had no right to appear both by himself and by counsel in a disciplinary proceeding. N.C. State Bar v. Sutton, 250 N.C. App. 85, 791 S.E.2d 881 (2016), appeal dismissed, 797 S.E.2d 296, 2017 N.C. LEXIS 223 (2017).

A party may not actively participate in trial proceedings when he is represented by counsel. Moorefield v. Garrison, 464 F. Supp. 892 (W.D.N.C. 1979).

No Right Under U.S. Const., Amend. VI to Serve as Co-Counsel. - While defendant had the right to appear either in propria persona or by counsel, defendant had no right under U.S. Const., Amend. VI to serve as co-counsel with his court-appointed attorney. State v. Parton, 303 N.C. 55, 277 S.E.2d 410 (1981), overruled on other grounds, in State v. Freeman, 314 N.C. 432, 333 S.E.2d 743 (1985).

Counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived. State v. Alston, 272 N.C. 278, 158 S.E.2d 52 (1967).

The constitutional right to counsel does not justify forcing counsel upon an accused who wants none. State v. Alston, 272 N.C. 278, 158 S.E.2d 52 (1967).

Pro Se Appearance of Defendant in Criminal Case. - A party is entitled to appear in propria persona; hence, when a defendant insisted upon this right, notwithstanding his ability to employ counsel and the efforts of the trial judge to assign him counsel, it could not be successfully argued on appeal that he was prejudiced by the actions of the trial court in failing to provide him with counsel and in permitting him wide latitude in the introduction of evidence. State v. Pritchard, 227 N.C. 168, 41 S.E.2d 287 (1947).

Effect of Appearance Pro Se. - Where defendant appeared pro se, the trial court did not err in allowing the admission of evidence to which defendant offered no objection at the time of its admission and in failing to warn defendant of his right against self-incrimination when defendant offered to testify in his own behalf. State v. Lashley, 21 N.C. App. 83, 203 S.E.2d 71 (1974).

Party Must Appear When Specifically Ordered. - Trial court did not err by refusing to recognize defendant's appearance through counsel as sufficient to satisfy requirement of show cause order which required him to appear in court; party's personal presence is required if he is specifically ordered to appear. Cox v. Cox, 92 N.C. App. 702, 376 S.E.2d 13 (1989).

Absent Court Order Party to Civil Action Not Required to Appear. - No statute, rule of court or decision mandates the presence of a party to a civil action or proceeding at the trial or at a hearing in connection with the action or proceeding, unless the party is specifically ordered to appear. Hamlin v. Hamlin, 302 N.C. 478, 276 S.E.2d 381 (1981).

Disqualification of Attorneys Acting Pro Se. - It was not an abuse of discretion to disqualify a law firm's attorneys from representing the firm in a fee collection case because (1) the attorneys would be necessary trial witnesses, the attorneys' testimony would encompass material, disputed issues, and none of N.C. R. Prof. Conduct 3.7's exceptions applied, (2) N.C. R. Prof. Conduct 3.7 literally supported disqualification, as the case did not involve the attorneys' ability to represent the attorneys but to represent the firm in a suit against a third party while serving as witnesses for the firm as to disputed fact issues, and (3) the North Carolina Court of Appeals had no authority to create an exception to the Rule. Harris & Hilton, P.A. v. Rassette, 252 N.C. App. 280, 798 S.E.2d 154 (2017).

Applied in State v. Grooms, 353 N.C. 50, 540 S.E.2d 713 (2000), cert. denied, 534 U.S. 838, 122 S. Ct. 93, 151 L. Ed. 2d 54 (2001).

Cited in County of Buncombe v. Penland, 206 N.C. 299, 173 S.E. 609 (1934); In re Taylor, 229 N.C. 297, 49 S.E.2d 749 (1948); Henderson v. Henderson, 232 N.C. 1, 59 S.E.2d 227 (1950); State v. Twitty, 212 N.C. App. 100, 710 S.E.2d 421 (2011); Bodie Island Beach Club Ass'n v. Wray, 215 N.C. App. 283, 716 S.E.2d 67 (2011); Hernandez v. Coldwell Banker Sea Coast Realty, 223 N.C. App. 245, 735 S.E.2d 605 (2012).


§ 1-12: Repealed by Session Laws 1967, c. 954, s. 4.

§ 1-13. Jurisdiction of clerk.

The clerk of the superior court has jurisdiction to hear and decide all questions of practice and procedure and all other matters over which jurisdiction is given to the superior court, unless the judge of the court or the court at a regular session is expressly referred to.

History

(C.C.P., s. 108; Code, s. 251; Rev., s. 358; C.S., s. 403; 1971, c. 381, s. 12.)

Cross References. - As to construction of references to the superior court to refer to the clerk thereof, see G.S. 1-7.

Legal Periodicals. - For discussion of this section and its history, see 1 N.C.L. Rev. 199 (1923).

CASE NOTES

History. - This section was passed in 1868 as a part of the Code of Civil Procedure. It was a part of the scheme to simplify procedure and speed up litigation so that justice could be had much sooner and at less expense than was formerly possible. But due to the depressed financial conditions brought about by the Civil War, the people were not desirous of a more speedy system of procedure, for the reason that in actions for debts the unfortunate litigants might have more time in which to improve their financial conditions so that they might be able to discharge the judgments. Under pressure of such demand the legislature passed in the same year what is known as the "Bachelor Act," which suspended the operation of certain portions of the Code of Civil Procedure temporarily. The legislature of 1870 made the suspension more permanent by providing that the act should remain in force until otherwise provided. The suspension act became Chapter 18 of Battle's revisal, was incorporated in the Code of 1883 as Chapter 10 of the Code of Civil Procedure, was carried forward in subsequent revisals (see Bynum v. Powe, 97 N.C. 374, 2 S.E. 170 (1887), and remained in force until 1919, when the legislature passed what is known as the "Crisp Act," restoring the suspended provisions of the Code of Civil Procedure. See Campbell v. Campbell, 179 N.C. 413, 102 S.E. 737 (1920); 1 N.C.L. Rev. 199 (1923).

The suspension act was chiefly directed at the portions of the Code of Civil Procedure which gave the clerk of the superior court power to decide questions of practice, procedure and other such matter out of term time. Hence this section was modified by the act. To prevent this section from operating in the class of cases named above, the act provided that the summons in all civil actions should be made returnable to the court in term time and that questions of pleading, practice and procedure should be determined during term time only. Therefore in such cases the operation of this section was totally suspended. But the suspension act did not affect special proceedings, and in such cases the clerk continued to exercise the power hereby conferred upon him, except as such authority may have been modified or affected by subsequent statutes. Brittain v. Mull, 91 N.C. 498 (1884); Jones v. Desern, 94 N.C. 32 (1886); Warden v. McKinnon, 94 N.C. 378 (1886).

With the passage of the Crisp Act this section is in full force and effect. See Campbell v. Campbell, 179 N.C. 413, 102 S.E. 737 (1920).

Constitutionality of Suspension Act. - The constitutionality of the suspension act was attacked in McAdoo v. Benbow, 63 N.C. 461 (1869), upon the ground that the Constitution required the clerk to hear and decide all questions of practice and procedure, but it was held that the Constitution made no such provision and that the legislature had power thereunder to make such regulations. Although there was one dissent to the holding, it became universally recognized as law until the Crisp Act of 1919. Bynum v. Powe, 97 N.C. 374, 2 S.E. 170 (1887).

Nature of Clerk's Power. - In exercising the jurisdiction herein conferred, the clerk is no more than a servant of the court, subject to its supervision in the manner provided elsewhere by statute. Brittain v. Mull, 91 N.C. 498 (1884); Maxwell v. Blair, 95 N.C. 317 (1886); Turner v. Holden, 109 N.C. 182, 13 S.E. 731 (1891).

Jurisdiction is conferred upon the court, and not upon the clerk, who is merely an instrument in performing his functions. Thus there is no divided jurisdiction between the clerk and the judge, but they both function as officials of the same court exercising but one jurisdiction. McAdoo v. Benbow, 63 N.C. 461 (1869); Jones v. Desern, 94 N.C. 32 (1886).

Power as to Equitable Relief. - The Code of Civil Procedure does not give the clerk power to make an order granting affirmative equitable relief. Equitable relief must be set up in the answer as a defense and then the clerk has power to hear all questions herein permitted. See Bragg v. Lyon, 93 N.C. 151 (1885); Vance v. Vance, 118 N.C. 864, 24 S.E. 768 (1896).

Duties of Clerk. - Regularly, in special proceedings (and since the act of 1919 in all proceedings) the pleadings should be made up and perfected by the clerk, acting as and for the court. Indeed, he so makes all the orders and judgments in the course of the proceeding, except in some exceptional respects, otherwise expressly provided for. Brittain v. Mull, 91 N.C. 498 (1884); Wharton v. Wilkerson, 92 N.C. 407 (1885); Loftin v. Rouse, 94 N.C. 508 (1886).

The court in term should not do more than to direct the clerk to perfect the pleadings and to allow or disallow amendment according to law. If the clerk should proceed and make decisions of questions of law, with which a party should be dissatisfied, such party might appeal, and in that way the decision of the judge would become that of the court. It was the duty of the clerk to make all proper orders of reference, as well as other orders and judgments in the course of the proceeding. If he should err in such respect, an appeal might be taken as indicated above. Loftin v. Rouse, 94 N.C. 508 (1886).

It was not the duty of the judge in term, after the issues were tried, there being no question of law to be decided, to direct the clerk what to do, or to make an order remanding the case to the clerk. The latter ought to have proceeded without an order and heard and determined the case upon its merits, subject to the right of appeal to the judge. Brittain v. Mull, 94 N.C. 595 (1886).

Effect of Failure of Clerk to Decide Questions. - The Supreme Court was not authorized to decide the questions of law presented by the pleadings and the issues of fact found by the jury where they had not been decided by the clerk, acting for the court, and, upon appeal, by the judge, as it was the duty of the clerk, acting for the court, to decide whatever question might be presented, and to make all proper orders. Brittain v. Mull, 94 N.C. 595 (1886).

De Novo Appeal of Clerk's Rulings. - Upon appeal from the rulings of the clerk, in vacation, upon procedural motions in pending civil actions, the jurisdiction of the superior court is not derivative; rather, the judge hears the matter de novo. Cody v. Hovey, 219 N.C. 369, 14 S.E.2d 30 (1941).

Amendments After Joinder of Issues. - Where, in special proceedings, the pleadings are made up before the clerk, and upon joinder of issues are transferred to the court in term, the judge has power to allow amendments, or he may stay the trial and remand the papers to the clerk in order that he may consider a motion to amend. Loftin v. Rouse, 94 N.C. 508 (1886).

Order of Remand Not Appealable. - An order remanding the papers to the clerk, in order that he may hear a motion to amend the pleadings, to the end that an account should be taken, is interlocutory and does not impair a substantial right; hence, it cannot be appealed from. Loftin v. Rouse, 94 N.C. 508 (1886).

Proceedings to obtain partition, dower and the like are special proceedings. Jones v. Desern, 94 N.C. 32 (1886).

A proceeding by creditors to compel an administrator to an account and payment of the debts of the estate is a special proceeding. Brittain v. Mull, 91 N.C. 498 (1884); Warden v. McKinnon, 94 N.C. 378 (1886).

The granting of a warrant of attachment was a special proceeding. Cushing v. Styron, 104 N.C. 338, 10 S.E. 258 (1889).


SUBCHAPTER II. LIMITATIONS.

ARTICLE 3. Limitations, General Provisions.

Sec.

§ 1-14: Repealed by Session Laws 1967, c. 954, s. 4.

§ 1-15. Statute runs from accrual of action.

  1. Civil actions can only be commenced within the periods prescribed in this Chapter, after the cause of action has accrued, except where in special cases a different limitation is prescribed by statute.
  2. Repealed by Session Laws 1979, c. 654, s. 3.
  3. Except where otherwise provided by statute, a cause of action for malpractice arising out of the performance of or failure to perform professional services shall be deemed to accrue at the time of the occurrence of the last act of the defendant giving rise to the cause of action: Provided that whenever there is bodily injury to the person, economic or monetary loss, or a defect in or damage to property which originates under circumstances making the injury, loss, defect or damage not readily apparent to the claimant at the time of its origin, and the injury, loss, defect or damage is discovered or should reasonably be discovered by the claimant two or more years after the occurrence of the last act of the defendant giving rise to the cause of action, suit must be commenced within one year from the date discovery is made: Provided nothing herein shall be construed to reduce the statute of limitation in any such case below three years. Provided further, that in no event shall an action be commenced more than four years from the last act of the defendant giving rise to the cause of action: Provided further, that where damages are sought by reason of a foreign object, which has no therapeutic or diagnostic purpose or effect, having been left in the body, a person seeking damages for malpractice may commence an action therefor within one year after discovery thereof as hereinabove provided, but in no event may the action be commenced more than 10 years from the last act of the defendant giving rise to the cause of action.

History

(C.C.P., s. 17; Code, s. 138; Rev., s. 360; C.S., s. 405; 1967, c. 954, s. 3; 1971, c. 1157, s. 1; 1975, 2nd Sess., c. 977, ss. 1, 2; 1979, c. 654, s. 3.)

Cross References. - For provision covering subject matter similar to that of repealed subsection (b) of this section, which related to accrual of causes of action for personal injury or physical damage to property in cases other than those covered by subsection (c) of this section, see G.S. 1-52(16).

As to pleading of affirmative defenses, including statute of limitations, see G.S. 1A-1, Rule 8.

As to the three-year limitations period during which any governmental agency entering into a contract which is or has been the subject of a conspiracy prohibited by G.S. 75-1 or G.S. 75-2 shall have a right of action for damages, see G.S. 133-28.

Legal Periodicals. - For case law survey as to replies and pleadings of statute of limitations, see 45 N.C.L. Rev. 829 (1967).

For note on when a cause of action accrues for limitations purposes in medical malpractice - the discovery rule, see 6 Wake Forest Intra. L. Rev. 532 (1970).

For article, "Statutes of Limitations in the Conflict of Laws," see 52 N.C.L. Rev. 489 (1974).

For comment, "Medical Malpractice in North Carolina," see 54 N.C.L. Rev. 1214 (1976).

For survey of 1976 case law on torts, see 55 N.C.L. Rev. 1088 (1977).

For note on the interaction between North Carolina's wrongful death statute and its statute of limitations for not readily apparent personal injuries or product defects, see 13 Wake Forest L. Rev. 543 (1977).

For survey of 1978 law on taxation, see 57 N.C.L. Rev. 1142 (1979).

For survey of 1982 law relating to constitutional law, see 61 N.C.L. Rev. 1052 (1983).

For survey of 1982 law on torts, see 61 N.C.L. Rev. 1225 (1983).

For note on statute of limitations accrual in attorney malpractice actions, in light of Thorpe v. DeMent, 69 N.C. App. 355, 317 S.E.2d 692, aff'd per curiam, 312 N.C. 488, 322 S.E.2d 777 (1984), see 20 Wake Forest L. Rev. 1017 (1984).

For note, "Black v. Littlejohn: A New Discovery Formula for Non-apparent Injuries Under the Professional Malpractice Statute of Limitations," see 64 N.C.L. Rev. 1438 (1986).

For article, "The American Medical Association vs. The American Tort System," see 8 Campbell L. Rev. 241 (1986).

For survey of North Carolina construction law, with particular reference to statutes of limitation and repose, see 21 Wake Forest L. Rev. 633 (1986).

For note, "Stallings v. Gunter: The North Carolina Court of Appeals Bids Farewell to the Medical Malpractice Statute of Repose," see 69 N.C.L. Rev. 1399 (1991).

For comment, "Adult Survivors of Childhood Sexual Abuse and Statutes of Limitations: A Call for Legislative Action," see 26 Wake Forest L. Rev. 1245 (1991).

For article, "The Learned Profession Exemption of the North Carolina Deceptive Trade Practices Act: The Wrong Bright Line?," see 15 Campbell L. Rev. 223 (1993).

For survey, "Let Truth Be Their Devise: Hargett v. Holland and the Professional Malpractice Statute of Repose," see 73 N.C.L. Rev. 2209 (1995).

For note, "Do You Need 'Will Insurance?' Let the Testator Beware - Hargett v. Holland," see 21 N.C. Cent. L.J. 353 (1995).

For comment, "Creating the Legal Monster: The Expansion and Effect of Legal Malpractice Liability in North Carolina", see 18 Campbell L. Rev. 121 (1996).

For note, "Rule 9(j) - Is Requiring a Plaintiff in a Medical Malpractice Action to Certify His or Her Claim Before Filing Unconstitutional? - The Issue in Anderson v. Assimos," 25 Campbell L. Rev. 219 (2003).

CASE NOTES

I. IN GENERAL.

Editor's Note. - Some of the cases cited below were decided prior to enactment of former subsection (b) of this section, now replaced by G.S. 1-52(16), and subsection (c) of this section.

Section Is Constitutional. - Square D. Co. v. C. J. Kern Contractors, 70 N.C. App. 30, 318 S.E.2d 527 (1984), aff'd, 76 N.C. App. 656, 334 S.E.2d 63 (1985).

This statute, as applied in legal malpractice case, does not violate the federal constitution or the state constitution. Garrett v. Winfree, 120 N.C. App. 689, 463 S.E.2d 411 (1995).

Constitutionality of Subsection (c). - Even if subsection (c) of this section may be vague as to certain classes of occupations because it fails to define "malpractice" or "professional services," it was not vague as to defendant doctor and hospital. Where a term such as "malpractice" or "professional service" has been used over such a lengthy period of time that its usage has given the term well-defined contours, such a term will not be found inadequate. Roberts v. Durham County Hosp. Corp., 56 N.C. App. 533, 289 S.E.2d 875 (1982), aff'd, 307 N.C. 465, 298 S.E.2d 384 (1983).

Subsection (c) of this section does not violate the federal constitutional guarantees of equal protection and the North Carolina Constitution's equal protection provision prohibiting exclusive emoluments contained in N.C. Const., Art. 1, § 32, because it is rationally related to maintaining sufficient medical treatment in this State. Roberts v. Durham County Hosp. Corp., 56 N.C. App. 533, 289 S.E.2d 875 (1982), aff'd, 307 N.C. 465, 298 S.E.2d 384 (1983).

Subsection (c) of this section is not unconstitutional. Walker v. Santos, 70 N.C. App. 623, 320 S.E.2d 407 (1984).

G.S. 1-50(5) and this section are not unconstitutional as being violative of the open courts provision of the State Constitution and the equal protection clauses of the state and federal Constitutions. Square D Co. v. C.J. Kern Contractors, 314 N.C. 423, 334 S.E.2d 63 (1985).

Retroactivity of Section. - This section did not affect litigation pending when it was ratified. Nationwide Mut. Ins. Co. v. Weeks-Allen Motor Co., 18 N.C. App. 689, 198 S.E.2d 88 (1973).

The 1971 amendment, adding former subsection (b) of this section, and the 1975 amendment, adding subsection (c) of this section, did not apply retroactively to revive actions already barred at common law, nor affect pending litigation. They would, however, apply to those cases which had not yet accrued, or which accrued within three years immediately preceding the effective date of the amendments. Ballenger v. Crowell, 38 N.C. App. 50, 247 S.E.2d 287 (1978).

This section applies to actions wherein formal pleadings are required to be filed and not to proceedings in the nature of a controversy without action upon an agreed statement of facts for the distribution of funds arising from a foreclosure sale. In re Gibbs, 205 N.C. 312, 171 S.E. 55 (1933).

"Special Cases" Where Different Limitation Prescribed. - The only "special case" in respect to torts "where a different limitation is prescribed by statute" is contained in the three-year statute, G.S. 1-52. This "different limitation" relates only to actions grounded on allegations of fraud or mistake. Lewis v. Shaver, 236 N.C. 510, 73 S.E.2d 320 (1952).

Section Not Statute of Presumptions. - Now we have no statute of presumptions. This section prescribes a statute of limitations only. George W. Helm Co. v. Griffin, 112 N.C. 356, 16 S.E. 1023 (1893).

The purpose of a statute of limitations is to afford security against stale demands, not to deprive anyone of his just rights by lapse of time. Congleton v. City of Asheboro, 8 N.C. App. 571, 174 S.E.2d 870 (1970).

Statutes of limitations are inflexible and unyielding. They operate inexorably without reference to the merits of plaintiff's cause of action. They are statutes of repose, intended to require that litigation be initiated within the prescribed time or not at all. Congleton v. City of Asheboro, 8 N.C. App. 571, 174 S.E.2d 870 (1970).

Vested Right to Rely on Statute. - The statute of limitations operates to vest a defendant with the right to rely on the statute of limitations as a defense. Congleton v. City of Asheboro, 8 N.C. App. 571, 174 S.E.2d 870 (1970); Callahan v. Rodgers, 89 N.C. App. 250, 365 S.E.2d 717 (1988).

The court has no discretion when considering whether a claim is barred by the statute of limitations. Congleton v. City of Asheboro, 8 N.C. App. 571, 174 S.E.2d 870 (1970); Callahan v. Rodgers, 89 N.C. App. 250, 365 S.E.2d 717 (1988).

Necessity of Pleading Statute. - A statute of limitations is not available as a defense or bar to an action unless it is pleaded, nor can it be raised, ordinarily, by motion to dismiss. Iredell County v. Crawford, 262 N.C. 720, 138 S.E.2d 539 (1964).

Unless a statute of limitations is annexed to the cause of action itself, the bar of limitation must be affirmatively pleaded in order to be available as a defense. Overton v. Overton, 259 N.C. 31, 129 S.E.2d 593 (1963).

As to necessity of pleading the statute of limitations, see also Pegram v. Stoltz, 67 N.C. 144 (1872); Guthrie v. Bacon, 107 N.C. 337, 12 S.E. 204 (1890); Randolph v. Randolph, 107 N.C. 506, 12 S.E. 374 (1890); Albertson v. Terry, 109 N.C. 8, 13 S.E. 713 (1891); King v. Powell, 127 N.C. 10, 37 S.E. 62 (1900); Pipes v. North Carolina Mica Mineral & Lumber Co., 132 N.C. 612, 44 S.E. 114 (1903); Brannock v. Fletcher, 271 N.C. 65, 155 S.E.2d 532 (1967).

For cases holding that the statute of limitations must be raised in the answer, see Green v. North Carolina R.R., 73 N.C. 524 (1875); Kahnweiler v. Anderson, 78 N.C. 133 (1878); Long v. Bank of Yanceyville, 81 N.C. 41 (1879); Bacon v. Berry, 85 N.C. 124 (1881); King v. Powell, 127 N.C. 10, 37 S.E. 62 (1900); Oldham v. Rieger, 145 N.C. 254, 58 S.E. 1091 (1907); Moody v. Wike, 170 N.C. 541, 87 S.E. 350 (1915); Logan v. Griffith, 205 N.C. 580, 172 S.E. 348 (1934); Lewis v. Shaver, 236 N.C. 510, 73 S.E.2d 320 (1952); Reid v. Holden, 242 N.C. 408, 88 S.E.2d 125 (1955); Stamey v. Rutherfordton Elec. Membership Corp., 249 N.C. 90, 105 S.E.2d 282 (1958); Elliott v. Goss, 250 N.C. 185, 108 S.E.2d 475 (1959); Iredell County v. Crawford, 262 N.C. 720, 138 S.E.2d 539 (1964).

Burden of Proof on Plaintiff When Statute Pleaded. - Where the statute of limitations has been pleaded, the burden is on plaintiff to show that his cause of action against defendant accrued within three years prior to the institution of the suit. State v. Cessna Aircraft Corp., 9 N.C. App. 557, 176 S.E.2d 796 (1970).

In general a cause of action accrues as soon as the right to institute and maintain a suit arises. Thurston Motor Lines v. General Motors Corp., 258 N.C. 323, 128 S.E.2d 413 (1962); North Carolina State Ports Auth. v. Lloyd A. Fry Roofing Co., 32 N.C. App. 400, 232 S.E.2d 846 (1977), aff'd, 294 N.C. 73, 240 S.E.2d 345 (1978); Penley v. Penley, 314 N.C. 1, 332 S.E.2d 51 (1985).

The statute of limitations cannot begin to run against an aggrieved party who under no circumstances could have maintained an action at the time the wrongful act was committed until that aggrieved party becomes entitled to maintain an action. Williams v. GMC, 393 F. Supp. 387 (M.D.N.C. 1975), aff'd, 538 F.2d 327 (4th Cir. 1976); Raftery v. Wm. C. Vick Constr. Co., 291 N.C. 180, 230 S.E.2d 405 (1976).

Generally, a cause of action accrues to an injured party so as to start the running of the statute of limitations when he is at liberty to sue, being at that time under no disability. Raftery v. Wm. C. Vick Constr. Co., 291 N.C. 180, 230 S.E.2d 405 (1976).

A cause of action generally accrues and the statute of limitations begins to run whenever a party becomes liable to an action, if at such time the demanding party is under no disability. In no event can a statute of limitations begin to run until plaintiff is entitled to institute an action. City of Reidsville v. Burton, 269 N.C. 206, 152 S.E.2d 147 (1967).

In no event can a statute of limitations begin to run until plaintiff is entitled to institute an action. Ordinarily, the period of the statute of limitations begins to run when the plaintiff's right to maintain an action for the wrong alleged accrues. Bolick v. American Barmag Corp., 54 N.C. App. 589, 284 S.E.2d 188 (1981), modified on other grounds, 306 N.C. 364, 293 S.E.2d 415 (1982).

An action based on personal injury must be commenced within three years of the date on which the claim accrued. For purposes of personal injury, the claim is deemed to have accrued when the injury became or should have become apparent to the claimant. Everhart v. Sowers, 63 N.C. App. 747, 306 S.E.2d 472 (1983), overruled on other grounds, Hazelwood v. Bailey, 339 N.C. 578, 453 S.E.2d 522 (1995).

Plaintiff's complaint accrued as soon as the right to institute and maintain suit arose which was at the time of the 1994 conveyance between county and nonprofit hospital where the plaintiff sought (1) a declaratory judgment as to the constitutionality of legislation governing conveyances, (2) a declaratory judgment upon the validity of a conveyance between two other parties, and (3) to enjoin a conveyance between two other parties. Hamlet HMA, Inc. v. Richmond County, 138 N.C. App. 415, 531 S.E.2d 494 (2000).

Imprisonment Does Not Toll Statute. - Imprisonment is not a disability that tolls the running of the statute of limitations. Small v. Britt, 64 N.C. App. 533, 307 S.E.2d 771 (1983).

The cause of action ordinarily accrues when the wrong is complete, even though the injured party did not then know the wrong had been committed. Raftery v. Wm. C. Vick Constr. Co., 291 N.C. 180, 230 S.E.2d 405 (1976); Bolick v. American Barmag Corp., 54 N.C. App. 589, 284 S.E.2d 188 (1981), modified on other grounds, 306 N.C. 364, 293 S.E.2d 415 (1982).

Exception for Fraud or Mistake. - A cause of action accrues and the statute of limitations begins to run whenever a party becomes liable to an action, if at such time the demanding party is under no disability. This rule is subject to certain exceptions, such as torts grounded on fraud or mistake. Matthieu v. Piedmont Natural Gas Co., 269 N.C. 212, 152 S.E.2d 336 (1967).

Notice of Cause of Action. - Trial court erred by dismissing plaintiff's action on the grounds that it was barred by the statute of limitations where plaintiff argued that because of action accrued on the last date he was treated by defendant but defendant argued that plaintiff's cause of action accrued when the other doctor told plaintiff that defendant "should be hung up by the balls", and whether this statement was sufficient to charge plaintiff with notice that he had a cause of action was not so clear that it could be decided as a matter of law. Hatem v. Bryan, 117 N.C. App. 722, 453 S.E.2d 199 (1995).

Statute of limitations begins to run from discovery of fraud or from time it should have been discovered in the exercise of reasonable diligence. Hyde v. Taylor, 70 N.C. App. 523, 320 S.E.2d 904 (1984).

If there is no claim or cause of action, the statute will not run. This principle is recognized by this section and there is nothing in G.S. 1-49 which conflicts with it. Miller v. Shoaf, 110 N.C. 319, 14 S.E. 800 (1892).

When the statute starts to run, it continues until stopped by appropriate judicial process. Speas v. Ford, 253 N.C. 770, 117 S.E.2d 784 (1961); B-W Acceptance Corp. v. Spencer, 268 N.C. 1, 149 S.E.2d 570 (1966).

Running of Statute Not Postponed by Mere Lack of Knowledge. - Mere lack of knowledge of the facts constituting a cause of action in tort, in the absence of fraudulent concealment of facts by the tort-feasor, does not postpone the running of the statute. Lewis v. Shaver, 236 N.C. 510, 73 S.E.2d 320 (1952).

When Statute Begins to Run Against Remainderman. - Ordinarily the statute of limitations does not begin to run against the rights of a remainderman to maintain an action to recover possession of land until after the expiration of the life estate. However, a remainderman is not required to wait until after the expiration of the life estate to bring an action to quiet title or otherwise protect his interest. Walston v. Applewhite & Co., 237 N.C. 419, 75 S.E.2d 138 (1953).

Continuing or Recurring Damages. - When the basis of the cause of action produces continuing or recurring damages, the cause of action accrues at the time damages are first sustained, the subsequent damages being merely in aggravation of the original damages and not being essential to the cause of action. Matthieu v. Piedmont Natural Gas Co., 269 N.C. 212, 152 S.E.2d 336 (1967).

Accrual of An Action Against An Ordinance and Enabling Statute. - Employer's cause of action for a declaratory judgment counterclaim accrued when the employer was sued under the employment provisions of a county discrimination ordinance and not when the enabling statute for the ordinance was passed; therefore, the employer's declaratory judgment counterclaim was not time-barred as the alleged wrong constituted a continuing violation and did not occur until the statute was enforced or applied. Williams v. Blue Cross Blue Shield, 357 N.C. 170, 581 S.E.2d 415 (2003).

Accrual of Cause of Action for Negligent Injury. - Unless tolled by disability or the fraudulent concealment of the cause of action, a cause of action for negligent injury ordinarily accrues when the wrong giving rise to the right to sue is committed, even though the damages at that time are nominal, without regard to the time when consequential injuries are discovered or should have been discovered. Shearin v. Lloyd, 246 N.C. 363, 98 S.E.2d 508 (1957); Ford Motor Credit Co. v. Minges, 473 F.2d 918 (4th Cir. 1973).

Promissory Note Payable on Demand. - The statute of limitations on an action on a promissory note payable on demand begins to run from the date of the execution of the note. Wells v. Barefoot, 55 N.C. App. 562, 286 S.E.2d 625 (1982).

Effect of Partial Payment on Promissory Note. - The limitations period on an action on a promissory note will begin anew when a partial payment is made by the debtor before the limitations period has expired, nothing else appearing. Wells v. Barefoot, 55 N.C. App. 562, 286 S.E.2d 625 (1982).

Agreement to Make Refund. - Where one pays another upon a debt which is uncertain in amount and takes an acknowledgment to a refund if overpaid, the statute does not begin to run against the agreement to refund until after the amount of overpayment is ascertained. Falls v. McKnight, 14 N.C. 421 (1832).

Where a party dies pending action, the statute of limitations begins to run from the date of the appointment of the administrator, and the plea of the statute must be set up in the answer. Lynn v. Lowe, 88 N.C. 478 (1883).

Section Not Applicable to Negligent Advice Rendered by Insurance Agent. - A cause of action based on negligent advice rendered by an insurance agent does not involve professional malpractice, and the appropriate statute of limitations is the three-year period of G.S. 1-52(5), not this section. Pierson v. Buyher, 330 N.C. 182, 409 S.E.2d 903 (1991).

Insurance agents who procured an insurance policy for a contractor were not providers of professional services for purposes of the extended statute of limitations under G.S. 1-15(c). Therefore, the statute of limitations under G.S. 1-52 was applicable to the contractor's claims against the insurance agents for general negligence and breach of contract in failing to procure needed insurance coverage for the contractor's operations. Scott & Jones, Inc. v. Carlton Ins. Agency, Inc., 196 N.C. App. 290, 677 S.E.2d 848 (2009).

Defendant administrator, assuming to act as plaintiff's agent in collection and application of rents, cannot plead the statute of limitations unless there was a demand and a refusal, and then only from the time thereof. Shuffler v. Turner, 111 N.C. 297, 16 S.E. 417 (1892).

Cause of action against the guarantor on a note accrues upon the maturity of the note and the failure of the maker to pay same according to its tenor. Hall v. Hood, 208 N.C. 59, 179 S.E. 27 (1935).

Accrual of Subrogation Action. - As plaintiff insured was not entitled to institute its subrogation action against defendant insurer until the Industrial Commission's final determination, its subrogation action against defendant accrued on that date. Nationwide Mut. Ins. Co. v. American Mut. Liab. Ins. Co., 89 N.C. App. 299, 365 S.E.2d 677 (1988).

Overflowing Sewage. - Where a municipal corporation constructed a sewer system which emptied quantities of raw sewage into a stream, which matter was periodically washed upon contiguous lands by freshets, in an action against the city by the owner of the land all damages to the land based on trespass occurring prior to three years before the institution of the action were barred by the three-year statute of limitations under this section and G.S. 1-52. Lightner v. City of Raleigh, 206 N.C. 496, 174 S.E. 272 (1934).

Easement Encroachment. - Statute of limitations for a lawsuit based upon encroachment on an easement is six years, and the statute of limitations for a claim based on injury to an easement runs from the time that the claim accrues, even if a plaintiff is not aware of the injury at that time. Therefore, a claim was time barred when it was not filed within 6 years of the completion of a house that encroached on an easement; completion occurred at the latest when a certificate of occupancy was issued. Duke Energy Carolinas, LLC v. Gray, 237 N.C. App. 420, 766 S.E.2d 354 (2014).

Where plaintiff alleged that a truck-tractor was equipped with a faulty and dangerous carburetor, likely to cause said truck-tractor to be "ignited with fire," when sold and delivered to plaintiff, and that defendants knew or by the exercise of due care should have known of such defective condition and failed to warn plaintiff thereof, plaintiff suffered injury and his rights were invaded immediately upon the sale and delivery of the truck-tractor to plaintiff, and a cause of action in favor of plaintiff and against defendants then accrued for which plaintiff was entitled to recover nominal damages at least. Thurston Motor Lines v. General Motors Corp., 258 N.C. 323, 128 S.E.2d 413 (1962).

In action to recover damages from dust and dirt injected into house by gas furnace and air conditioner purchased from defendant, where plaintiffs' allegations were to the effect that the defect was obvious from the beginning, that complaints were made to defendant, and that defendant's employees reported no defect could be found in the system but that they would continue to look, it was held that plaintiffs' cause of action accrued upon the occurrence of the first damage, and plaintiffs were not entitled to rely upon estoppel of defendant to plead the statute, since defendant consistently took the position that no defect existed and never made any representation that would have led plaintiffs to refrain from suing. Matthieu v. Piedmont Natural Gas Co., 269 N.C. 212, 152 S.E.2d 336 (1967).

When personal services are rendered with understanding that compensation is to be made in will of recipient, payment therefor does not become due until death, and the statutes of limitation do not begin to run until that time. Stewart v. Wyrick, 228 N.C. 429, 45 S.E.2d 764 (1947).

As to the effect of former subsection (b), relating to accrual of causes of action in cases involving bodily injury or a defect in or damage to property, where the injury was latent, see Quail Hollow E. Condominium Ass'n v. Donald J. Scholz Co., 47 N.C. App. 518, 268 S.E.2d 12, cert. denied, 301 N.C. 527, 273 S.E.2d 454 (1980).

Former subsection (b) of this section, providing that except where otherwise provided, a cause of action, other than one for wrongful death or one for malpractice, having as an essential element bodily injury to the person or a defect in or damage to property which originated under circumstances making the injury, defect or damage not readily apparent to the claimant at the time of its origin, would be deemed to have accrued at the time the injury was discovered by the claimant, or ought reasonably to have been discovered by him, provided that in such cases the period shall not exceed 10 years from the last act of the defendant giving rise to the claim for relief, was not applicable to claims arising out of a disease. Wilder v. Amatex Corp., 314 N.C. 550, 336 S.E.2d 66 (1985).

Former subsection (b) had no application to claims arising out of disease. Leonard v. Johns-Manville Sales Corp., 316 N.C. 84, 340 S.E.2d 338 (1986).

Actions for fraud were not subject to the 10-year limitation of former subsection (b) of this section, since G.S. 1-52(9) is a statute that "otherwise provides" as to the time of accrual of an action for fraud, and under G.S. 1-52(9) the three-year limitation for an action for fraud accrues at the time of discovery, regardless of the length of time between the fraudulent act or mistake and discovery of it. Feibus & Co. v. Godley Constr. Co., 301 N.C. 294, 271 S.E.2d 385 (1980), rehearing denied, 301 N.C. 727, 274 S.E.2d 228 (1981).

A suit does not involve an "injury to the person or rights of another" until plaintiff is hurt. Stell v. Firestone Tire & Rubber Co., 306 F. Supp. 17 (W.D.N.C. 1969).

Liability of a manufacturer in a wrongful death case is not limited to 10 years. Williams v. GMC, 393 F. Supp. 387 (M.D.N.C. 1975), aff'd, 538 F.2d 327 (4th Cir. 1976).

Application of Section to Automobile Accident Cases. - The statute of limitations for tort claims had no impact on the notification provisions of G.S. 20-279.21(b)(4), and the defendants, therefore, were not required to notify the plaintiff/insurer within that SOL. Liberty Mut. Ins. Co. v. Pennington, 141 N.C. App. 495, 541 S.E.2d 503 (2000), aff'd, 356 N.C. 571, 573 S.E.2d 118 (2002).

Statute of Repose Not Tolled by Incompetency. - Statute of repose for a guardian's cause of action for professional malpractice was not tolled by incompetency as: (1) the claim that incompetency tolled the statute of repose had been rejected in Livingston v. Adams Kleemeier Hagan Hannah & Fouts , 163 N.C. App. 397, 594 S.E.2d 44 (2004); (2) there was no reason to overrule Livingston ; and (3) there was a well-established judicial policy in North Carolina that decisions of the North Carolina Supreme Court were presumed to operate retroactively, and Livingston was applied retroactively. Wells v. Cumberland County Hosp. Sys., 181 N.C. App. 590, 640 S.E.2d 400 (2007).

Claim Barred by Statute. - There was no continuing duty on attorney to correct will; therefore, the attorney's last act giving rise to the claim was his supervision of the will's execution, since this was more than four years preceding the filing of the complaint, the four-year statute of repose barred the claim. Hargett v. Holland, 337 N.C. 651, 447 S.E.2d 784 (1994).

Dismissal Upheld. - The trial court properly dismissed action brought by doctors against accountants who had been engaged to advise them on business opportunities under G.S. 1A-1, Rule 12(b)(6), as doctors' complaint against accountants disclosed that its claims were either time-barred or lacked facts sufficient to state a claim for relief. Harrold v. Dowd, 149 N.C. App. 777, 561 S.E.2d 914 (2002).

Partner's breach of fiduciary duty claim was properly dismissed under G.S. 1A-1, N.C. R. Civ. P. 12(b)(6), because the last act upon which the claim was based occurred more than six years before an attorney was sued; whether the three-year statute of limitations or the four-year statute of repose applied was immaterial as both had long since expired. Carlisle v. Keith, 169 N.C. App. 674, 614 S.E.2d 542 (2005).

Trial court properly granted the contractors summary judgment on the city's negligence, fraud, negligent misrepresentation, breach of contract, breach of warranty, and professional malpractice claims arising from the rehabilitation and repair of the city's sanitary sewer collection system where the city filed the suit more than four years after all the claims arose, and since the operation and maintenance of a sewer system was a proprietary function, not governmental, the doctrine of nullum tempus occurrit regi did not apply. Town of Littleton v. Layne Heavy Civil, Inc., 261 N.C. App. 88, 819 S.E.2d 101 (2018).

Applied in Davis v. E.I. DuPont DeNemours & Co., 400 F. Supp. 1347 (W.D.N.C. 1974); Simpson v. Hurst Performance, Inc., 437 F. Supp. 445 (M.D.N.C. 1977); Shields v. Prendergast, 36 N.C. App. 633, 244 S.E.2d 475 (1978); Stanley v. Brown, 43 N.C. App. 503, 259 S.E.2d 408 (1979); Flippin v. Jarrell, 44 N.C. App. 518, 261 S.E.2d 257 (1980); Haislip v. Riggs, 534 F. Supp. 95 (W.D.N.C. 1981); Stokes v. Wilson & Redding Law Firm, 72 N.C. App. 107, 323 S.E.2d 470 (1984); Schneider v. Brunk, 72 N.C. App. 560, 324 S.E.2d 922 (1985); Long v. Fink, 80 N.C. App. 482, 342 S.E.2d 557 (1986); Byrd v. Hancock, 86 N.C. App. 564, 358 S.E.2d 557 (1987); Webster v. Powell, 98 N.C. App. 432, 391 S.E.2d 204 (1990); Brittain v. Cinnoca, 111 N.C. App. 656, 433 S.E.2d 244 (1993), cert. denied, 339 N.C. 736, 454 S.E.2d 646 (1995); NCNB Nat'l Bank v. Deloitte & Touche, 119 N.C. App. 106, 458 S.E.2d 4 (1995); Little v. Hamel, 134 N.C. App. 485, 517 S.E.2d 901 (1999); Brisson v. Kathy A. Santoriello, M.D., P.A., 351 N.C. 589, 528 S.E.2d 568 (2000); PharmaResearch Corp. v. Mash, 163 N.C. App. 419, 594 S.E.2d 148 (2004), cert. denied and dismissed, 358 N.C. 733, 601 S.E.2d 858 (2004); McCutchen v. McCutchen, 170 N.C. App. 1, 612 S.E.2d 162 (2005); Foster v. Crandell, 181 N.C. App. 152, 638 S.E.2d 526 (2007), review denied, stay denied, 361 N.C. 567, 650 S.E.2d 602 (2007); Wilkerson v. Christian, - F. Supp. 2d - (M.D.N.C. Feb. 19, 2008).

Cited in Commonwealth Mut. Fire Ins. Co. v. Edwards, 124 N.C. 116, 32 S.E. 404 (1899); McNeill v. Suggs, 199 N.C. 477, 154 S.E. 729 (1930); J.G. Dudley Co. v. Commissioner, 298 F.2d 750 (4th Cir. 1962); Bradley v. Lewis Motors, Inc., 12 N.C. App. 685, 184 S.E.2d 397 (1971); Employers Commercial Union Co. of Am. v. Westinghouse Elec. Corp., 15 N.C. App. 406, 190 S.E.2d 364 (1972); Hager v. Brewer Equip. Co., 17 N.C. App. 489, 195 S.E.2d 54 (1973); Raftery v. Wm. C. Vick Constr. Co., 29 N.C. App. 495, 224 S.E.2d 706 (1976); Rutherford v. Bass Air Conditioning Co., 38 N.C. App. 630, 248 S.E.2d 887 (1978); Troy's Stereo Ctr., Inc. v. Hodson, 39 N.C. App. 591, 251 S.E.2d 673 (1979); Feibus & Co. v. Godley Constr. Co., 44 N.C. App. 133, 260 S.E.2d 665 (1979); Preston v. Thompson, 53 N.C. App. 290, 280 S.E.2d 780 (1981); Collins v. Edwards, 54 N.C. App. 180, 282 S.E.2d 559 (1981); Black v. Littlejohn, 67 N.C. App. 211, 312 S.E.2d 909 (1984); Estrada v. Burnham, 316 N.C. 318, 341 S.E.2d 538 (1986); Stevens v. Nimocks, 82 N.C. App. 350, 346 S.E.2d 180 (1986); Cheek v. Poole, 98 N.C. App. 158, 390 S.E.2d 455 (1990); Bockweg v. Anderson, 96 N.C. App. 660, 387 S.E.2d 59 (1990); Lowry v. Duke Univ. Medical Ctr., 109 N.C. App. 83, 425 S.E.2d 739 (1993); Bockweg v. Anderson, 333 N.C. 486, 428 S.E.2d 157 (1993); Osborne v. Walton, 110 N.C. App. 850, 431 S.E.2d 496 (1993); Aetna Cas. & Sur. Co. v. Anders, 116 N.C. App. 348, 447 S.E.2d 504 (1994); Ruff v. Reeves Bros., 122 N.C. App. 221, 468 S.E.2d 592 (1996); Barger v. McCoy Hillard & Parks, 346 N.C. 650, 488 S.E.2d 215 (1997); Liptrap v. City of High Point, 128 N.C. App. 353, 496 S.E.2d 817 (1998), cert. denied, 348 N.C. 73, 505 S.E.2d 873 (1998); Timour v. Pitt County Mem. Hosp., 131 N.C. App. 548, 508 S.E.2d 329 (1998); Friedland v. Gales, 131 N.C. App. 802, 509 S.E.2d 793 (1998); Sharp v. Gailor, 132 N.C. App. 213, 510 S.E.2d 702 (1999); RCDI Constr. v. Spaceplanrchitecture, Planning & Interiors, P.A., 148 F. Supp. 2d 607 (W.D.N.C. 2001); Shealy v. Lunsford, 355 F. Supp. 2d 820 (M.D.N.C. 2005); Schenkel & Shultz, Inc. v. Hermon F. Fox & Assocs., P.C., 180 N.C. App. 257, 636 S.E.2d 835 (2006), aff'd, 362 N.C. 269, 658 S.E.2d 918 (2008); Bogovich v. Embassy Club of Sedgefield, Inc., 211 N.C. App. 1, 712 S.E.2d 257 (2011); Stinchcomb v. Presbyterian Med. Care Corp., 211 N.C. App. 556, 710 S.E.2d 320 (2011), review denied 717 S.E.2d 376, 2011 N.C. LEXIS 670 (N.C. 2011); Branch Banking & Trust Co. v. Chi. Title Ins. Co., 212 N.C. App. 456, 711 S.E.2d 751 (2011); Birtha v. Stonemor, N.C. LLC, 220 N.C. App. 286, 727 S.E.2d 1 (2012); Smith v. Axelbank, 222 N.C. App. 555, 730 S.E.2d 840 (2012); Williams v. Lynch, 225 N.C. App. 522, 741 S.E.2d 373 (2013); ACTS Retirement-Life Cmtys., Inc. v. Town of Columbus, 248 N.C. App. 456, 789 S.E.2d 527 (2016), appeal dismissed, 370 N.C. 694, 810 S.E.2d 681, 2018 N.C. LEXIS 208 (2018); KB Aircraft Acquisition, LLC v. Berry, 249 N.C. App. 74, 790 S.E.2d 559 (2016).

II. MALPRACTICE.

Legislative Intent. - The General Assembly, by including separate discovery provisions for both nonapparent injury and foreign objects and retaining the 10-year outer limit for discovery of foreign objects rather than reducing it to four years intended that claimants be given the maximum opportunity in delayed discovery situations to pursue their cause of action subject to the outer time limits in the statute. Black v. Littlejohn, 312 N.C. 626, 325 S.E.2d 469 (1985).

The legislature's adoption of an outer limit or repose of four years from the last act of the defendant giving rise to the cause of action for nonapparent injuries and 10-year period of repose for discovery of foreign objects clearly have the effect of granting a defendant an immunity to actions for malpractice after the applicable period of time has elapsed. Black v. Littlejohn, 312 N.C. 626, 325 S.E.2d 469 (1985).

Bodily "injury," as used in the one-year-from-discovery provision of subsection (c), denotes bodily injury resulting from wrongful conduct in a legal sense. Black v. Littlejohn, 312 N.C. 626, 325 S.E.2d 469 (1985).

The malpractice statutes of limitations provide an absolute statutory outer limit. This outer limit is more precisely referred to as a period of repose. Unlike an ordinary statute of limitations which begins running upon accrual of the claim, the period contained in the statute of repose begins when a specific event occurs, regardless of whether a cause of action has accrued or whether any injury has resulted. Black v. Littlejohn, 312 N.C. 626, 325 S.E.2d 469 (1985).

Repose serves as an unyielding and absolute barrier that prevents a plaintiff's right of action even before his cause of action may accrue, which is generally recognized as the point in time when the elements necessary for a legal wrong coalesce. Black v. Littlejohn, 312 N.C. 626, 325 S.E.2d 469 (1985).

Subsection (c) of this section and G.S. 1-17(b) must be construed in pari materia. Osborne ex rel. Williams v. Annie Penn Mem. Hosp., 95 N.C. App. 96, 381 S.E.2d 794, cert. denied, 325 N.C. 547, 385 S.E.2d 500 (1989).

Purpose of Subsection (c). - Subsection (c) of this section was passed by the General Assembly in an attempt to preserve medical treatment and control malpractice insurance costs, both of which were threatened by the increasing number of malpractice claims. Roberts v. Durham County Hosp. Corp., 56 N.C. App. 533, 289 S.E.2d 875 (1982), aff'd, 307 N.C. 465, 298 S.E.2d 384 (1983).

The legislature passed subsection (c) specifically to address the question of when an action for medical malpractice would be barred by time. Lackey v. Bressler, 86 N.C. App. 486, 358 S.E.2d 560 (1987).

Effect of Subsection (c). - Subsection (c) of this section significantly altered the law of limitations applicable to professional malpractice actions. It changed the time of accrual of such actions from the date of discovery of injury to the date of defendant's last act which gave rise to the action. Flippin v. Jarrell, 301 N.C. 108, 270 S.E.2d 482 (1980), rehearing denied, 301 N.C. 727, 274 S.E.2d 228 (1981).

Although the statute of limitations set out in subsection (c) of this section begins to run at the time of the last negligent act or breach of some duty, and not the time actual damage is discovered or fully ascertained, this statute still requires, as an element of the cause of action for malpractice, that plaintiff suffer some loss or injury, whether it be apparent or hidden. Snipes v. Jackson, 69 N.C. App. 64, 316 S.E.2d 657, cert. denied and appeal dismissed, 312 N.C. 85, 321 S.E.2d 899 (1984).

Although subsection (c) extends the limitations period where the discovery of an injury is delayed, this extension was not intended to defeat the outer time limit of four years from the defendant's last act. Mathis v. May, 86 N.C. App. 436, 358 S.E.2d 94, cert. denied, 320 N.C. 794, 361 S.E.2d 78 (1987).

This section requires that a medical malpractice cause of action must be filed within three years of the date of the last act giving rise to the cause of action, and it also gives a period of repose of four years. Bowlin v. Duke Univ., 119 N.C. App. 178, 457 S.E.2d 757 (1995).

Suit was untimely under G.S. 1-15(c) statute of repose, and the G.S. 1-15(c) limitations period, which began to run with the last act of negligent malpractice committed by defendant in September 2003, when defendant recommended unsuitable investments to plaintiff one; sufficient evidence was not submitted of a timeline to allow the jury to find that the suit was timely. Orr v. Calvert, 212 N.C. App. 254, 713 S.E.2d 39 (2011), rev'd 365 N.C. 320, 720 S.E.2d 387, 2011 N.C. LEXIS 989 (2011).

Negligence claim failed as to plaintiff two as plaintiffs failed to present sufficient evidence of a timeline to submit their claims to the jury since although a negligence claim was filed within the four-year maximum limit provided by G.S. 1-15(c), the suit had to have been filed within three years of the last act of defendant giving rise to the cause of action, unless not discoverable by plaintiff two for more than two years, in which case plaintiff two had one year from the time of discovery; because three years after the last alleged negligent act of defendant would have been February 2007, the suit was not timely filed unless plaintiff two was subject to the discovery provision of G.S. 1-15(c), which allowed an action to be commenced within one year of discovery, and plaintiff two did not show that plaintiff two did not discover the loss until December 2006. Orr v. Calvert, 212 N.C. App. 254, 713 S.E.2d 39 (2011), rev'd 365 N.C. 320, 720 S.E.2d 387, 2011 N.C. LEXIS 989 (2011).

Applicability Contingent on Performance or Failure to Perform Professional Services. - Subsection (c) of this section applies to all claims of malpractice, not just medical malpractice. However, in order for this statute to apply, there must first be a performance of or failure to perform professional services. Doe v. American Nat'l Red Cross, 798 F. Supp. 301 (E.D.N.C. 1992), decided under prior law.

Subsection (c) of this section establishes two separate grounds for malpractice: (1) malpractice arising out of the performance of professional services; and (2) the failure to perform professional services. Callahan v. Rodgers, 89 N.C. App. 250, 365 S.E.2d 717 (1988).

Subsection (c) is broad enough to encompass professionals other than those in health care. However, the statute does not mean that all persons labeled "professionals" necessarily fall within its ambit. The North Carolina Professional Liability Study Commission wanted the statute to include some, but not necessarily all, professionals other than "health care providers." The Legislature intended the statute to apply to malpractice claims against all professionals who are not dealt with more specifically by some other statute. Trustees of Rowan Technical College v. J. Hyatt Hammond Assocs., 313 N.C. 230, 328 S.E.2d 274 (1985).

Professional Services. - The rendering of "professional services" as that term is set forth in this section necessarily includes those services where a professional relationship exists between plaintiff and defendant, such as a physician-patient or attorney-client relationship. Doe v. American Nat'l Red Cross, 798 F. Supp. 301 (E.D.N.C. 1992), decided under prior law.

Where the Red Cross did not treat or care for plaintiff in any way other than to initially take and process the blood which was transfused into him, no professional relationship existed. The Red Cross did not render professional services to him as that term is used in subsection (c) of this section. As such, the action was not one for malpractice, and as a result, the 4-year statute of repose in subsection (c) of this section did not apply to bar plaintiff's claim. Rather, the action was subject to the personal injury statutes of limitations found in G.S. 1-52(5), (16). Doe v. American Nat'l Red Cross, 798 F. Supp. 301 (E.D.N.C. 1992), decided under prior law.

Trial court erred in granting the tax preparers summary judgment on the ground that her professional negligence claims were barred by G.S. 1-15(c) where genuine issues of fact existed as to whether they were responsible for delivering, mailing, or providing plaintiff with her tax returns and whether and when they did so.

An award of summary judgment on the application of the statute of repose as to a client's professional negligence claim against an accountant was improper because the parties disputed the scope of the accountant's contracted-for services and what constituted their last act that triggered the running of the statute of repose on the claim. Head v. Gould Killian CPA Grp., P.A., 371 N.C. 2, 812 S.E.2d 831 (2018).

Fraud by an attorney is not within the scope of professional services as that term is used in G.S. 1-15(c), and thus cannot be malpractice within the meaning of that statute. Bader v. Mark Kurdys & Roberts & Stevens P.A., - F. Supp. 2d - (W.D.N.C. Sept. 1, 2017).

Applicability of Subsection (c) to Actions Already Accrued on Effective Date. - If a new statute, such as subsection (c) of this section, shortens the period of limitation, it must, to comport with due process, provide a reasonable time for filing sections which have accrued but which have not been filed when the new statute takes effect. Flippin v. Jarrell, 301 N.C. 108, 270 S.E.2d 482 (1980), rehearing denied, 301 N.C. 727, 274 S.E.2d 228 (1981).

Subsection (c) of this section, which changed the time of accrual of malpractice actions from the date of discovery of injury to the date of defendant's last act which gave rise to the action and shortened the limitation period from 10 years to four years for latent nonforeign object claims discovered two or more years after defendant's last negligent act, could not constitutionally be applied to bar plaintiff's claim for medical expenses and loss of services of her child, where the child's injury was discovered on November 22, 1976, and subsection (c) of this section became effective on January 1, 1977, as plaintiff's claim as it existed before January 1, 1977, did not accrue until November 22, 1976, and the statute thus provided plaintiff only 39 days in which to file her claim after she discovered it, and the statute as applied to plaintiff would thus not afford her a reasonable time within which to bring her action. Flippin v. Jarrell, 301 N.C. 108, 270 S.E.2d 482 (1980), rehearing denied, 301 N.C. 727, 274 S.E.2d 228 (1981).

Where the four-year period of limitation contained in subsection (c) of this section could not constitutionally be applied to plaintiff's claim for medical malpractice, the one-year-from-discovery clause of the statute which qualifies the limitation period could not be applied to the claim either, since the one-year qualification clause is not an independent, separable provision but must stand or fall with the time limitation which it qualifies. Flippin v. Jarrell, 301 N.C. 108, 270 S.E.2d 482 (1980), rehearing denied, 301 N.C. 727, 274 S.E.2d 228 (1981).

As to retroactivity of subsection (c) of this section, see also Nationwide Mut. Ins. Co. v. Weeks-Allen Motor Co., 18 N.C. App. 689, 198 S.E.2d 88 (1973) and Ballenger v. Crowell, 38 N.C. App. 50, 247 S.E.2d 287 (1978), cited above.

Failure to make a proper disclosure of risks involved in medical procedure is in the nature of malpractice (negligence) and the three-year statute of limitations applies. Nelson v. Patrick, 58 N.C. App. 546, 293 S.E.2d 829 (1982).

Accrual of Cause of Action for Actions and Omissions. - This section provides that for both actions and omissions, the cause of action accrues and the statute of limitations begins to run at the time of defendant's last act giving rise to the cause of action. Callahan v. Rodgers, 89 N.C. App. 250, 365 S.E.2d 717 (1988).

Where plaintiff suffered injury after falling from a gurney, the statute of limitations accrued on the date of the fall, although plaintiffs were told by hospital personnel that there was not and would not be any brain damage or injury. Hussey v. Montgomery Mem. Hosp., 114 N.C. App. 223, 441 S.E.2d 577, cert. denied, 336 N.C. 605, 447 S.E.2d 393 (1994).

A cause of action for malpractice arising out of the performance or failure to perform professional services accrues at the time of the occurrence of the last act of the defendant giving rise to the claim; from that date, plaintiff has a minimum of three years within which to bring a suit for medical malpractice, but must bring the suit within four years of the last act of the defendant giving rise to the cause of action. Horton v. Carolina Medicorp, Inc., 119 N.C. App. 777, 460 S.E.2d 567 (1995), rev'd on other grounds, 344 N.C. 133, 472 S.E.2d 778 (1996).

Substantial completion of service rendered by defendant attorney occurred when he failed to timely file a change of condition request in workers' compensation action; this omission was defendant's last act giving rise to plaintiff's claim. Garrett v. Winfree, 120 N.C. App. 689, 463 S.E.2d 411 (1995).

Legal malpractice action accrues at the time of the last act of the defendant giving rise to the cause of action, but if the claimant's loss is not readily apparent to the claimant at the time of its origin, and is discovered or should reasonably be discovered by the claimant two or more years after the last act of the defendant giving rise to the cause of action, suit must be commenced within one year from the date discovery is made. Bolton v. Crone, 162 N.C. App. 171, 589 S.E.2d 915 (2004).

Clients' legal malpractice action against their attorney and his law firm was time-barred under G.S. 1-15(c) because the last act of the attorney giving rise to the clients' cause of action occurred no later than when the clients signed a release prepared by their insurer and took possession of their settlement check; thereafter, the acts of mailing and filing a dismissal with prejudice following the settlement were duties that the attorney and his firm performed as officers of the court to comply with the terms of the settlement agreement previously signed by the clients. Ramboot Inc. v. Lucas, 181 N.C. App. 729, 640 S.E.2d 845 (2007).

Trial court correctly determined that a portion of clients' claims against attorneys were not barred by the three-year statute of limitations set forth in G.S. 1-15(c) because the trial court found that the attorneys engaged in negligent conduct from 22 April 2005 through 15 March 2006, and the clients' complaint was filed on 6 November 2007; when the attorneys' last act of negligence occurred was a factual issue to be determined by the trial court, sitting in the role of the jury, and the trial court found that from April 22, 2005, until the dismissal of a state court action, the attorneys failed to fully advise the clients of the risk they would be found liable for some or all of attorneys' fees. Chase Dev. Group v. Fisher, Clinard & Cornwell, PLLC, 211 N.C. App. 295, 710 S.E.2d 218 (2011).

Plaintiffs' legal malpractice claim was barred by the four-year statute of repose, G.S. 1-15(c), as the last act of an attorney's alleged professional negligence occurred more than four years before suit was filed, when he inquired about the status of securities purchases he was handling for plaintiffs and was advised that the transaction was complete. Carle v. Wyrick, Robbins, Yates & Ponton, LLP, 225 N.C. App. 656, 738 S.E.2d 766 (2013), review denied, 367 N.C. 236, 748 S.E.2d 320, 2013 N.C. LEXIS 997 (2013).

Where a client discovered, or reasonably should have discovered, the alleged injury resulting from her attorneys' alleged acts or omissions well before the two-year period, the "one year from the date discovery is made" provision did not apply, and the client was required to initiate suit within the three year statute of limitations. Hackos v. Goodman, 228 N.C. App. 33, 745 S.E.2d 336 (2013).

Certification Requirements for Medical Malpractice. - Where a medical malpractice plaintiff does not file the complaint with the proper certification before the running of the statute of limitation, the complaint cannot have been deemed to have commenced within the statute; thus, where a plaintiff fails to file a complaint including a valid certification within the statute of limitations, granting the plaintiff's motion to amend his or her second complaint would have been futile.

Action Against Environmental Consultant. - A company seeking environmental cleanup of its property was required to commence its malpractice action against its cleanup consultant within four years after the last act giving rise to the action. Delta Envtl. Consultants of N.C. Inc. v. Wysong & Miles Co., 132 N.C. App. 160, 510 S.E.2d 690 (1999).

The continued course of treatment doctrine applies to situations in which the doctor continues a particular course of treatment over a period of time. When the injurious consequences arise from a continuing course of negligent treatment, the statute does not ordinarily begin to run until the injurious treatment is terminated. The malpractice in such cases is regarded as a continuing tort because of the persistence of the physician or surgeon in continuing and repeating the wrongful treatment. Callahan v. Rodgers, 89 N.C. App. 250, 365 S.E.2d 717 (1988).

Because the "continuing course of treatment" doctrine affects determination of the accrual date, and the accrual date under subsection (c) of this section is the starting date for the running of the statute of limitations and statute of repose, it is correct to use the "continuing course of treatment" doctrine to determine the starting date for the running of the statute of repose. It is only by using the doctrine that a court can determine defendant's relevant "last act." Stallings v. Gunter, 99 N.C. App. 710, 394 S.E.2d 212 (1990).

An exception to the rule that malpractice action accrues at the time of defendant's negligence is the continued course of treatment doctrine; under this doctrine, the action accrues at the conclusion of the physician's treatment of the patient, so long as the patient has remained under the continuous treatment of the physician for the injuries which gave rise to the cause of action. Horton v. Carolina Medicorp, Inc., 119 N.C. App. 777, 460 S.E.2d 567 (1995), rev'd on other grounds, 344 N.C. 133, 472 S.E.2d 778 (1996).

The continuing course of treatment doctrine in medical malpractice claims tolls the running of the statute of limitations for the period between the original negligent act and the ensuing discovery and correction of its consequences; however, the claim still accrues at the time of the original negligent act or omission. Horton v. Carolina Medicorp, Inc., 344 N.C. 133, 472 S.E.2d 778 (1996).

The continuing course of treatment doctrine applies to hospitals in the same manner that it does to other health care providers. Horton v. Carolina Medicorp, Inc., 344 N.C. 133, 472 S.E.2d 778 (1996).

Where a plaintiff shows a continuous relationship with a physician and subsequent treatment by the physician related to the original act or omission that gave rise to the claim, the continuing course of treatment doctrine tolls the running of the statute of limitations for the period between the original negligent act and the time the damage is discovered and corrected. Goins v. Puleo, 130 N.C. App. 28, 502 S.E.2d 621 (1998), rev'd on other grounds, 350 N.C. 277, 512 S.E.2d 748 (1999).

Where a genuine issue of material fact existed about whether to apply the continuing course of treatment doctrine in a dental negligence case summary judgment for defendant on the issue of the expiration of the statute of limitations period was precluded. Rissolo v. Sloop, 135 N.C. App. 194, 519 S.E.2d 766 (1999).

For case holding the continuing course of treatment exception applicable in a medical malpractice action alleging that defendant negligently caused and continued plaintiff's addiction to narcotics, see Ballenger v. Crowell, 38 N.C. App. 50, 247 S.E.2d 287 (1978).

Physician assistant's prescription refill constituted treatment under the continuing course of treatment doctrine where doctor not only performed surgery but also rendered post-operative corrective treatment approximately 17 times after the surgery and ordered original steroid prescription. Whitaker v. Akers, 137 N.C. App. 274, 527 S.E.2d 721 (2000).

Continued Course of Treatment Doctrine Not Applicable. - The "continuing course of treatment" doctrine is not a part of this section, but rather, is a construct of the courts that will not be expanded to encompass negligence arising from provision of professional engineering services between sophisticated corporate parties. Delta Envtl. Consultants of N.C. Inc. v. Wysong & Miles Co., 132 N.C. App. 160, 510 S.E.2d 690 (1999).

Jury Instruction on Effect of Discovery of Injury. - Defendant was entitled to a jury instruction on the effect of plaintiff's discovery of his injury vis-a-vis the continuous course of conduct doctrine and the running of the statute of limitations; plaintiff knew he was incontinent and impotent, but there was some question whether he knew or should have known that defendant's conduct was wrongful and whether that conduct caused his incontinence and impotence, prior to the running of the statute of limitations. Whitaker v. Akers, 137 N.C. App. 274, 527 S.E.2d 721 (2000).

Where, following surgery, defendant continued to provide treatment for the same injury over a period of six months, culminating in plaintiff's last visit on June 24, 1981, plaintiff had until June 24, 1984 in which to file an action for malpractice under the continued course of treatment rule. Callahan v. Rodgers, 89 N.C. App. 250, 365 S.E.2d 717 (1988).

Letter to Patient Did Not Qualify as Continuing Relationship. - Physician's letter to a patient upon whom he had performed surgery, indicating the need for the removal of a foreign object, did not qualify as a "continuing relationship" under the continuing treatment doctrine, when the letter was written five years after the last physician-patient contact and which letter was prompted by a chiropractor's suggestion of an abnormality in the surgical area. Hensell v. Winslow, 106 N.C. App. 285, 416 S.E.2d 426, cert. denied, 332 N.C. 344, 421 S.E.2d 148 (1992).

Neither Did Visits to Emergency Room. - Plaintiff's diversity-based medical malpractice action against a hospital for damages she suffered after the hospital allegedly withheld an X-ray report from plaintiff and her family physician was barred by the statute of limitations because plaintiff discovered the hospital's failure to report the X-ray within two years of the date the X-ray was made, such that plaintiff could not avail herself of the extension of the filing period conferred as a result of latent injuries. Furthermore, plaintiff failed to show how her unscheduled visits to the emergency room represented an ongoing relationship to advance the treatment of her asthma. Conner v. St. Luke's Hosp., 996 F.2d 651 (4th Cir. 1993).

Prescription Medication Not Continuing Course of Treatment. - Prescription medication, absent any other contact with a doctor, did not constitute a continuing course of treatment and, therefore, did not extend the statute of limitations period. Trexler v. Pollock, 135 N.C. App. 601, 522 S.E.2d 84 (1999).

Applicability of Latent Injury Discovery Rule. - For a plaintiff to avail himself of the one year extension under the latent injury discovery rule, he must show that: (1) the injury of economic loss originated under circumstances making the injury or loss not readily apparent at the time of its origin; (2) the injury or loss was discovered or should reasonably have been discovered by the plaintiff two or more years after the occurrence of the last act of the defendant giving rise to the cause of action; (3) suit was commenced within one year from the date discovery was made; and (4) the statute of limitations may not, in any case, have been reduced to below three years or extended beyond four years. Thorpe v. DeMent, 69 N.C. App. 355, 317 S.E.2d 692, aff'd, 312 N.C. 488, 322 S.E.2d 777 (1984).

Plaintiff's discovery of defendant's failure to inform her of the availability of a drug as a less drastic alternative to the hysterectomy performed by defendant on plaintiff qualified as discovery of a nonapparent "injury" that comes within the one-year discovery provision of subsection (c). Black v. Littlejohn, 312 N.C. 626, 325 S.E.2d 469 (1985).

If the injury suffered by a patient was not readily apparent to the patient at the time of its origin and the injury was not discovered by plaintiff for two or more years after the last act of the defendant giving rise to the claim, an action may be filed within one year of the date of such discovery, but must be filed within four years of the last alleged negligent act of the defendant. Teague v. Randolph Surgical Assocs., 129 N.C. App. 766, 501 S.E.2d 382 (1998).

Discovery Rule Applied. - Client alleged he was unaware that the signatures on the mediated settlement agreement had to be notarized to be enforceable, and he claimed he did not discover this until the district court so held; the earliest the client could have been expected to have discovered the defect was when the other attorney filed a motion to dismiss his motion to enforce the agreement, and this date was more than two years after the last act giving rise to the claim, and thus the discovery rule applied. Podrebarac v. Horack, Talley, Pharr, & Lowndes, P.A., 231 N.C. App. 70, 752 S.E.2d 661 (2013).

Where plaintiff was shown an x-ray by her chiropractor which revealed the presence of a drain in her body left over from her prior plastic surgery, and where the chiropractor made plaintiff aware of the potential for severe illness or death if the drain remained, and he advised plaintiff to contact her plastic surgeon to have the drain removed, plaintiff was made aware, not only that a foreign object was present in her body, but that it was due to wrongful conduct, sufficient to run the one-year statute of limitations. Hensell v. Winslow, 106 N.C. App. 285, 416 S.E.2d 426, cert. denied, 332 N.C. 344, 421 S.E.2d 148 (1992).

Plaintiff 's claim against health care provider for unauthorized disclosure of communications was one for malpractice, and the applicable statute of limitations was subsection (c) of this section, rather than G.S. 1-52. The cause of action accrued at the time of the last unauthorized discussion of the patient's case with another doctor. Watts v. Cumberland County Hosp. Sys., 75 N.C. App. 1, 330 S.E.2d 242 (1985), rev'd on other grounds, 317 N.C. 321, 345 S.E.2d 201 (1986).

Effect of Subsection (c). - Nevada limited liability company could not amend its suit to allege a tort claim of a North Carolina limited liability company after the Nevada company succeeded to the rights of the North Carolina company following a merger under G.S. 55-11-06(a)(4) as it did not assert its right to file the tort claim before the claim became time-barred under G.S. 1-15(c); the Nevada company's suit clearly alleged violations of patent rights that had been assigned to it, and did not give notice that the suit was intended to be a re-filing of a malpractice case by the North Carolina company that had been dismissed under G.S. 1A-1, N.C. R. Civ. P. 41. Even if the amendment were allowed, it would not relate back under G.S. 1A-1, N.C. R. Civ. P. 15(c). Revolutionary Concepts, Inc. v. Clements Walker PLLC, 2012 NCBC 14 (2012).

Nevada limited liability company did not become the real party in interest under G.S. 1A-1, N.C. Gen. R. Civ. P. 17 to bring a malpractice case previously dismissed by a North Carolina limited liability company after the Nevada company succeeded to the rights of the North Carolina company following a merger under G.S. 55-11-06(a)(4) as the Nevada company did not bring the North Carolina company's tort claim before they became time-barred under G.S. 1-15(c). Revolutionary Concepts, Inc. v. Clements Walker PLLC, 2012 NCBC 14 (2012).

Claim Not Time-Barred. - Although a title insurer claimed a trial court erred in determining that G.S. 1-52(9) was the statute of limitations that controlled claims the insurer could have filed against a law firm and its attorneys rather than G.S. 1-15, the trial court properly found the insurer was not time barred from filing a claim for professional negligence or negligent misrepresentation at the time the insurer was notified of a bank's claim under the policy but the insurer took no action against the firm or its attorneys; the law firm and its attorneys had issued a final opinion of title with respect to a certain parcel that the bank later discovered had been previously encumbered. Branch Banking & Trust Co. v. Chi. Title Ins. Co., 214 N.C. App. 459, 714 S.E.2d 514 (2011).

Present complaint was filed within one year of the date a motion to dismiss had been filed, which was the earliest the client could have been expected to have discovered the defect in question, and thus the complaint was not barred by the statute of limitations. Podrebarac v. Horack, Talley, Pharr, & Lowndes, P.A., 231 N.C. App. 70, 752 S.E.2d 661 (2013).

Although it was possible that discovery would reveal the client ought to have been aware of his injury earlier, the time bar was not apparent from the face of the complaint. Podrebarac v. Horack, Talley, Pharr, & Lowndes, P.A., 231 N.C. App. 70, 752 S.E.2d 661 (2013).

Statute not applicable to ordinary negligence. - Trial court erred in dismissing the plaintiff's action with prejudice on the grounds that the plaintiff violated the statute of repose because the plaintiff's action was subject to the three-year statute of limitations, not the statute of repose, as the plaintiff's claims against the defendant sounded in ordinary negligence; and because, although the plaintiff voluntarily dismissed the plaintiff's complaint, the plaintiff timely refiled the complaint within one year. Goodman v. Living Centers-Southeast, Inc., 234 N.C. App. 330, 759 S.E.2d 676 (2014).

Malpractice Claim Barred. - A negligence action against attorneys by the liquidator of a life insurer was barred where more than three years elapsed since the last negligent act of defendants and, where the complaint did not allege "continuous representation" by defendants connected with the original negligent act, that doctrine did not apply to toll running of the statute. State ex rel. Long v. Petree Stockton, 129 N.C. App. 432, 499 S.E.2d 790 (1998), cert. granted, 349 N.C. 240, 516 S.E.2d 607 (1998).

Plaintiff's claim based on medical malpractice was barred by the three-year statute of limitations of subsection (c) of this section and by the provisions of G.S. 1-17(b) requiring an action for malpractice in the performance of professional services for a minor to be brought before the minor attains the full age of 19, where the last act of negligence by defendants allegedly occurred in 1962 when plaintiff was four years old and plaintiff filed his claim one day before his twentieth birthday, and there was no merit to plaintiffs' contention that G.S. 1-17(b) did not apply to an action brought by a plaintiff in his own behalf. Hohn v. Slate, 48 N.C. App. 624, 269 S.E.2d 307 (1980), cert. denied, 301 N.C. 720, 274 S.E.2d 229 (1981).

Malpractice complaint filed on November 20, 1992, was barred by the statute of repose where the last alleged negligent act of the defendants giving rise to this cause of action occurred in 1982 and plaintiff could not prove later treatment. Sidney v. Allen, 114 N.C. App. 138, 441 S.E.2d 561, petition denied as to additional issues, 338 N.C. 670, 453 S.E.2d 182 (1994), aff'd, 341 N.C. 190, 459 S.E.2d 237 (1995).

Malpractice action against attorney for alleged negligence in failing to procure the transfer of a lot was barred by subsection (c), where plaintiffs did not institute their action within three years of the negligence; action for a separate act of negligence in procuring a deed to the lot from individuals who had filed for bankruptcy, was filed within three years of the negligent act and was not barred. McGahren v. Saenger, 118 N.C. App. 649, 456 S.E.2d 852 (1995), cert. denied, 340 N.C. 568, 460 S.E.2d 318 (1995), appeal dismissed and cert. denied, 460 S.E.2d 319 (1995).

The patient's medical malpractice action was barred by the limitation of this subsection, where the last act giving rise to the patient's cause occurred more than three years before the patient filed her action. Jones v. Asheville Radiological Group, 129 N.C. App. 449, 500 S.E.2d 740 (1998).

Since plaintiff filed her medical malpractice claim more than three years from the last act giving rise to plaintiff's cause of action, the trial court did not err in granting defendants summary judgment. Jones v. Asheville Radiological Group, P.A., 134 N.C. App. 520, 518 S.E.2d 528 (1999).

This section barred the plaintiff bank's claims based on legal malpractice where the defendant closed the loan transaction more than six years before the amended complaint was filed and there were no allegations of an ongoing attorney-client relationship between plaintiff and defendant. NationsBank v. Parker, 140 N.C. App. 106, 535 S.E.2d 597 (2000).

Causes of action by decedent's heirs against an attorney who drafted the decedent's will, codicil, and other documents, which transferred the decedent's property to a university, were subject to the three-year statute of limitations for legal malpractice despite the heirs' attempts to frame their suit as one for breach of fiduciary duty. Baars v. Campbell Univ., Inc., 148 N.C. App. 408, 558 S.E.2d 871, cert. denied, 355 N.C. 490, 563 S.E.2d 563 (2002).

As five years had passed before client brought a legal malpractice action it was barred by the statute of limitations; the allegations of fraud and constructive fraud were basically the same claims as the legal malpractice and, therefore, also failed. Fender v. Deaton, 153 N.C. App. 187, 571 S.E.2d 1, cert. denied, 356 N.C. 612, 574 S.E.2d 680 (2002).

Ex-client's malpractice action was barred by the statute of limitations as the alleged acts of negligence related only to the representation at the trial court level and the ex-client did not appeal the equitable distribution judgment, which occurred more than three years prior to the commencement of the malpractice action in violation of subsection (c) of this section. Teague v. Isenhower, 157 N.C. App. 333, 579 S.E.2d 600 (2003), cert. denied, 357 N.C. 470, 587 S.E.2d 347 (2003).

Claims for medical malpractice and wrongful death which an administrator filed against a doctor in July 2001, alleging that the administrator's mother died in April 1999 because the doctor misread a chest x-ray in February 1997, were barred by G.S. 1-15(c) and 1-53(4), and the trial court properly granted a motion to dismiss the action. Udzinski v. Lovin, 159 N.C. App. 272, 583 S.E.2d 648 (2003), aff'd, 358 N.C. 534, 597 S.E.2d 703 (2004).

A legal malpractice case alleging that the lawyers failed to advise the client of use restrictions on land purchased by the client was time barred, and the trial court's order dismissing the case was affirmed, where, in a separate case, the client had failed to specifically deny that he was notified of the land use restrictions approximately two months after closing on the purchase of the land, and over three years before filing the legal malpractice case. Bolton v. Crone, 162 N.C. App. 171, 589 S.E.2d 915 (2004).

Appellate court rejected plaintiff's claim that action, which she filed individually and as the administrator of her mother's estate alleging that attorneys who represented her mother while she was still alive committed malpractice, was not barred by G.S. 1-15 because the statute of limitations was tolled. Livingston v. Adams Kleemeier Hagan Hannah & Fouts, P.L.L.C., 163 N.C. App. 397, 594 S.E.2d 44 (2004), cert. denied, 359 N.C. 190, 607 S.E.2d 275 (2004).

Trial court properly dismissed an estate's medical malpractice suit against the hospital defendants, the medical practice defendants, and a doctor where a first complaint that was voluntarily dismissed did not contain a G.S. 1A-1, N.C. R. Civ. P. 9(j) certification, and the re-filed complaint was filed after the statute of limitations expired and the 120-day extension, if it had been sought, would have expired; there was no expert review prior to the commencement of the original action, which was contrary to the North Carolina legislature's intent in enacting Rule 9(j). Estate of Barksdale v. Duke Univ. Med. Ctr., 175 N.C. App. 102, 623 S.E.2d 51 (2005).

Even assuming that a continuing doctor/patient relationship for treatment related to the patient's negligence action, there was no competent evidence to suggest that the patient's severed nerve could have been restored or repaired, and therefore the continuing course of treatment doctrine was inapplicable; thus, applying G.S. 1-52(16) and G.S. 1-15(c), the three-year statute of limitations began to run with the doctor's last act giving rise to the cause of action, i.e. the surgery in which he severed the nerve, and barred the patient's cause of action. Webb v. Hardy, 182 N.C. App. 324, 641 S.E.2d 754 (2007).

Client's professional negligence claim against an attorney was barred by the statute of repose, G.S. 1-15(c), because the client brought his professional malpractice action nearly seven years after the attorney's last act; because the attorney voluntarily dismissed without prejudice the client's claims in October 1997, the last opportunity for him to act on the claims occurred in October 1998, and the client brought his professional malpractice action in May 2006. Goodman v. Holmes & McLaurin, 192 N.C. App. 467, 665 S.E.2d 526 (2008), review dismissed, as moot, 363 N.C. 125, 675 S.E.2d 363 (2009).

Client's legal malpractice claim was properly dismissed under G.S. 1A-1, Rule 12(b)(6), as time barred, because the action was filed over three years after end of trial and, one count alleged negligence in trial strategy, response to pretrial stipulations, and discovery, all of which necessarily occurred before or during trial, while the second count alleged negligence in failure to challenge the validity of a prenuptial agreement on appeal, which was in adhering to the rules of court and thus, did not constitute malpractice. Ventriglia v. Deese, 194 N.C. App. 344, 669 S.E.2d 817 (2008).

Trial court did not err in concluding that a portion of clients' claims against attorneys were barred by the three-year statute of limitations set forth in G.S. 1-15(c) because the evidence presented at trial was conflicting as to whether the attorneys represented the clients from October 2003 through April of 2004, and the trial court found that when a corporation filed an amended complaint in state court action adding the clients as individual defendants, the attorneys advised opposing counsel that he did not represent the clients. Chase Dev. Group v. Fisher, Clinard & Cornwell, PLLC, 211 N.C. App. 295, 710 S.E.2d 218 (2011).

Plaintiffs' claims for legal malpractice and breach of fiduciary duty against an attorney were barred by the statute of repose of G.S. 1-15(c). The attorney owed no continuing duty to plaintiffs after he drafted a trust restatement and two other documents. Babb v. Hoskins, 223 N.C. App. 103, 733 S.E.2d 881 (2012).

Because plaintiffs' claim was brought on May 31, 2011, which was within the three-year statute of limitations, the trial court erred when it dismissed plaintiffs' legal malpractice claim as it related to the 2008 preparation of tax returns. Babb v. Hoskins, 223 N.C. App. 103, 733 S.E.2d 881 (2012).

Because the last act giving rise to a client's legal malpractice claim - the attorneys' alleged failure to petition from the appellate court's punishment for gross violations of the rules of appellate procedure - occurred more than three years before she filed suit, her claims were time-barred and properly dismissed. Hackos v. Goodman, 228 N.C. App. 33, 745 S.E.2d 336 (2013).

Trial court did not err dismissing a patient's medical malpractice complaint because the patient failed to file a complaint including a valid certification within the statute of limitations, and thus, granting her motion to amend her second complaint would have been futile; the complaint failed to allege that a person reasonably expected to qualify as an expert had reviewed all available medical records pertaining to the alleged negligence. Fintchre v. Duke Univ., 241 N.C. App. 232, 773 S.E.2d 318 (2015).

Court of appeals erred in reversing an order dismissed a child's medical malpractice claims as time barred because the child filed his action after the statute of limitations expired, and the appointment of a guardian ad litem provided the child a legal representative and removed his disability of minority; the removal of the disability eliminates the tolling and starts the running of the applicable three-year statute of limitations for medical malpractice actions. King v. Albemarle Hosp. Auth., 370 N.C. 467, 809 S.E.2d 847 (2018).

Claims Were Time-Barred. - In an action by a principal against, inter alia, a developer and the developer's attorney, claiming entitlement to indemnification, and alleging breach of contract and negligent misrepresentation, summary judgment under Fed. R. Civ. P. 56(c) was granted for the developer's attorney where the developer's legal malpractice cross-claim, and the principal's claims were time-barred under G.S. 1-15(c) and G.S. 1-52(1), and (5), as their claims were filed after the three year limitations period. Cincinnati Ins. Co. v. Centech Bldg. Corp., 286 F. Supp. 2d 669 (M.D.N.C. 2003).

Partnership's claims against an attorney were time-barred because (1) the statute of repose did not apply, as no economic or monetary loss was shown, (2) the partnership did not explain why claims were not reasonably discoverable within the limitations period, and (3) the partnership did not provide a specific injury date from which to measure a time period. BDM Invs. v. Lenhil, Inc., - N.C. App. - , 826 S.E.2d 746 (2019).

Plaintiff's claims regarding the execution of a civil drug tax lien and the subsequent search occurred more than three years ago and therefore were barred by the statute of limitations. White v. Hasson, - F. Supp. 2d - (W.D.N.C. Mar. 16, 2010).

Claims Expired Prior to Filing of Complaint. - Heirs and estate filed their complaint against the attorney on July 8, 2005 but the last act or omission by the attorney alleged in the complaint, outside of a July 2002 affidavit, was the attorney's preparation of the November 1997 will. Since the claims for professional negligence, fraud, and obstruction of justice expired prior to the filing of their complaint in the action under G.S. 1-15(c) and G.S. 1-52(9), (16), summary judgment was proper as to those claims. Self v. Yelton, 201 N.C. App. 653, 688 S.E.2d 34 (2010).

Statute Not Tolled by Appeal of Underlying Actions in Legal Malpractice Case. - In a legal malpractice case, where lawyer's last act in the underlying action was when default judgment occurred, and another lawyer took over the case and appealed the judgment, subsection (c) barred plaintiff insurance company's action for legal malpractice since plaintiff's cause of action accrued and the limitations period began to run no later than the date of the default judgment and the statute was not tolled by the appeal of the underlying action. Nationwide Mut. Ins. Co. v. Winslow, 95 N.C. App. 413, 382 S.E.2d 872 (1989).

Statute Not Tolled by Equitable Doctrine of Adverse Domination. - The equitable doctrine of adverse domination did not toll the statute of repose which applied to bar a negligence action against attorneys by the liquidator of a life insurer. State ex rel. Long v. Petree Stockton, 129 N.C. App. 432, 499 S.E.2d 790 (1998), cert. granted, 349 N.C. 240, 516 S.E.2d 607 (1998).

Statute Tolled by Voluntary Dismissal Provisions. - Plaintiff's claims for medical malpractice were not barred by the three-year statute of limitations of subsection (c) where the refiling of the original state court action in a federal district court invoked the "savings" provision of G.S. 1A-1, Rule 41(a)(1), pertaining to voluntary dismissal, and thereby tolled the limitations period. Porter v. Groat, 713 F. Supp. 893 (M.D.N.C. 1989).

Ruling of Relation Back Not Required Prior to Voluntary Dismissal. - Plaintiff did not forfeit her right to prosecute medical malpractice lawsuit and obtain appellate review of previous court orders by failing to seek a ruling of relation back prior to seeking a voluntary dismissal. Bowlin v. Duke Univ., 119 N.C. App. 178, 457 S.E.2d 757 (1995).

Amended Complaint Related Back. - Because original malpractice complaint gave defendants sufficient notice, amended complaint which added only a Rule 9(j) certification related back to the filing of the original and, thus, fell within the statute of limitations. Brisson v. Santoriello, 134 N.C. App. 65, 516 S.E.2d 911 (1999).

In a medical malpractice case, the trial court erred in granting the doctor and hospital's motions for judgment on the pleadings and denying the injured party's motion to set aside the dismissal where the injured party filed the case on the last day of a 120-day extension, filed an amended complaint containing the expert testimony certification, voluntarily dismissed the case and later refiled the complaint; the statute of limitations for malpractice actions under subsection (c) of this section had not run because the original complaint was timely filed and the first action was properly dismissed without prejudice and properly re-filed within a year. Bass v. Durham County Hosp. Corp., 158 N.C. App. 217, 580 S.E.2d 738 (2003), cert. denied, 357 N.C. 457, 585 S.E.2d 382 (2003).

Re-filed Complaint Related Back. - Trial court erred by dismissing a client's claim for compensation for "emotional" damages stemming from an attorney's alleged legal malpractice as the client's allegation that he sustained "emotional" injury was nothing more than a description of the damage that he claimed to have suffered as a result of the attorney's negligence and did not constitute the addition of an enforceable claim or cause of action that the statute of limitations had run against. Thus, the client's claim for emotional injury related back, pursuant to G.S. 1A-1, N.C. R. Civ. P. 41(a)(1), to the original filing of his complaint, which he had previously voluntarily dismissed, and this filing was timely as it was filed within the three-year period set out in G.S. 1-15(c). Royster v. McNamara, 218 N.C. App. 520, 723 S.E.2d 122 (2012).

Nonsuit Upheld. - Where there was no evidence that a surgeon attempted to conceal from his patient the fact that a foreign substance had been left in his body at the conclusion of an operation, but to the contrary the surgeon frankly disclosed the facts upon their ascertainment by X-ray less than two years after the operation, nonsuit was properly entered in an action for malpractice instituted more than three years after the operation. Shearin v. Lloyd, 246 N.C. 363, 98 S.E.2d 508 (1957), decided prior to enactment of subsection (c).

Fraud by Attorney Not Included. - Because claims arising out of the performance of or failure to perform professional services based on negligence or breach of contract are in the nature of malpractice claims, they are governed by subsection (c); however, fraud by an attorney is not within the scope of professional services and thus cannot be "malpractice" within the meaning of this statute. Sharp v. Teague, 113 N.C. App. 589, 439 S.E.2d 792, review improvidently granted, Sharp v. Teague, 339 N.C. 730, 456 S.E.2d 771 (1995).

This section did not apply to plaintiff financial institution's claim alleging constructive fraud against attorney, which fell under G.S. 1-56 instead, and failed because there was no evidence that the amount paid defendant for notarizing and witnessing loan documents would have been any different if the documents had not been forged. NationsBank v. Parker, 140 N.C. App. 106, 535 S.E.2d 597 (2000).

For case holding that evidence negated fraudulent concealment of cause of action against surgeon for technical assault in performing an operation beyond the scope of the one authorized, see Lewis v. Shaver, 236 N.C. 510, 73 S.E.2d 320 (1952), decided prior to enactment of subsection (c).

For application of subsection (c) in action against attorney for negligence in advising plaintiff to transfer his property to his children to avoid his second wife's claim against him for alimony, see Clodfelter v. Bates, 44 N.C. App. 107, 260 S.E.2d 672 (1979), cert. denied, 299 N.C. 329, 265 S.E.2d 394 (1980).

Limitation for Wrongful Death Action Not Extended. - Subsection (c) of this section would not apply to extend statute of limitations for plaintiff bringing action for wrongful death based on alleged acts of medical malpractice; plaintiff was required to bring her wrongful death claim within two years of deceased's death, pursuant to G.S. 1-53(4). King v. Cape Fear Mem. Hosp., 96 N.C. App. 338, 385 S.E.2d 812 (1989), cert. denied, 326 N.C. 265, 389 S.E.2d 114 (1990).

Four year statute of repose for medical malpractice actions, G.S. 1-15(c), applied to wrongful death cases; a wrongful death medical malpractice suit filed within two years of decedent's death, but more than four years after doctor's last act, was properly dismissed as untimely. Udzinski v. Lovin, 358 N.C. 534, 597 S.E.2d 703 (2004).

Appointment of Guardian Has No Effect on Tolling Provision. - Appointment of a guardian for a minor does not render the tolling provisions of G.S. 1-17(b) inapplicable to the minor; therefore, where guardian was appointed for minor, and action on behalf of minor for medical malpractice was filed more than five years after that appointment but before minor reached 19, the cause of action was not barred by the statute of limitations. Osborne ex rel. Williams v. Annie Penn Mem. Hosp., 95 N.C. App. 96, 381 S.E.2d 794, cert. denied, 325 N.C. 547, 385 S.E.2d 500 (1989).

Appointment of Guardian Ad Litem Removes Disability of Minority And Starts Running of Statute of Limitations. - As a minor's legal representative with the authority and directive to act, a guardian ad litem advocates for the legal rights of the minor in the minor's stead, and the trial court's appointment of a guardian ad litem on behalf of a minor therefore removes that minor's disability of minority and starts the running of the statute of limitations; the statute of limitations continues to run even if the guardian ad litem files and then dismisses a legal action. King v. Albemarle Hosp. Auth., 370 N.C. 467, 809 S.E.2d 847 (2018).

Because a court-appointed guardian ad litem has the duty to pursue the minor's claim within the statute of limitations, a failure to do so time bars the claim. King v. Albemarle Hosp. Auth., 370 N.C. 467, 809 S.E.2d 847 (2018).

Minor as Claimant in Malpractice Suit. - A claimant in a professional malpractice case must file the action within the time limitations contained in subsection (c), unless that period expires before the claimant reaches 19 years of age, in which case, claimant may bring the action at any time before he or she reaches age 19, pursuant to G.S. 1-17. Osborne ex rel. Williams v. Annie Penn Mem. Hosp., 95 N.C. App. 96, 381 S.E.2d 794, cert. denied, 325 N.C. 547, 385 S.E.2d 500 (1989).

Failure of Attorney to File Financing Statement. - An attorney who represents a party in the sale of some of its assets under a security agreement has a duty to file the financing statement after the transaction is closed, which duty continues so long as the filing of the financing statement would protect some interest of his client, and where the attorney fails to file such statement and his client therefore loses his lien upon debtor's bankruptcy, the statute of limitations begins to run on the date the petition in bankruptcy is filed. Sunbow Indus., Inc. v. London, 58 N.C. App. 751, 294 S.E.2d 409, cert. denied, 307 N.C. 272, 299 S.E.2d 219 (1982).

A cause of action involving malpractice in tax matters does not accrue until the I.R.S. assesses a deficiency. Snipes v. Jackson, 69 N.C. App. 64, 316 S.E.2d 657, appeal dismissed and cert. denied, 312 N.C. 85, 321 S.E.2d 899 (1984).

Summary Judgment Was Improper in Informed Consent Action. - Where in a patient's "informed consent" action, defendant doctor, who was the party moving for summary judgment, offered no evidence on the issue of when plaintiff discovered or should have discovered she was injured as a result of defendant's alleged act of negligently informing plaintiff of the risks of surgery, the plaintiff was not obligated to come forward with any evidence, and summary judgment for defendant was improper; if moving party fails in his burden of proof, summary judgment is inappropriate regardless of whether opponent responds. Foard v. Jarman, 93 N.C. App. 515, 378 S.E.2d 571 (1989), rev'd on other grounds, 326 N.C. 24, 387 S.E.2d 162 (1990).

Dismissal Improper in Legal Malpractice Action. - In plaintiff's action for legal negligence, question as to when last wrongful act of the defendant occurred was at issue; therefore, the action was improperly dismissed pursuant to Rule 12(b)(6). Southeastern Hosp. Supply Corp. v. Clifton & Singer, 110 N.C. App. 652, 430 S.E.2d 470 (1993).

Motion to Dismiss Denied. - Because the face of the complaint did not clearly reveal that plaintiff borrower's claims against defendant attorney and law firm accrued before January 30, 2004 (the cut-off date under the three-year statute of limitations), the attorney and law firm's request to dismiss the remaining claims based on the statute of limitations was denied. Higgins v. Spence & Spence, - F. Supp. 2d - (E.D.N.C. Feb. 21, 2008).

Continuing Professional Relationship Between Attorney and Client. - Absent a continuing duty imposed by the contractual relationship or the nature of the services, an attorney has no continuing duty or relationship to a client; thus, there was no on-going relationship between defendant attorney and client for whom he drafted deeds. Jordan v. Crew, 125 N.C. App. 712, 482 S.E.2d 735, cert. denied, 346 N.C. 279, 487 S.E.2d 548 (1997).

Because plaintiffs did not allege a continuing professional relationship directly related to the drafting of two deeds, they failed to show a continuing relationship between defendant attorney and plaintiffs' grandfather; therefore, defendant's last act, for purposes of the statute of repose, was the drafting and delivery of the deeds and not a later failure to correct the error so that the cause of action was barred under subsection (c). Jordan v. Crew, 125 N.C. App. 712, 482 S.E.2d 735, cert. denied, 346 N.C. 279, 487 S.E.2d 548 (1997).


§ 1-15.1. Statutes of limitation and repose for civil actions seeking to recover damages arising out of a criminal act.

  1. Notwithstanding any other provision of law, if a defendant is convicted of a criminal offense and is ordered by the court to pay restitution or restitution is imposed as a condition of probation, special probation, work release, or parole, then all applicable statutes of limitation and statutes of repose, except as established herein, are tolled for the period set forth in this subsection for purposes of any civil action brought by an aggrieved party against that defendant for damages arising out of the offense for which the defendant was convicted. Any statute of limitation or repose applicable in the civil action shall be tolled from the time of entry of the court order
    1. Requiring that restitution be made,
    2. Making restitution a condition of probation or special probation, or
    3. Recommending that restitution be made a condition of work release or parole,
  2. In any civil action brought by an aggrieved party against the defendant for damages arising out of the offense for which the defendant was convicted:
    1. The defendant has the right to contest the amount of damages;
    2. The amount of any restitution ordered or imposed shall not be admissible into evidence; and
    3. All restitution paid by the defendant to the aggrieved party shall be credited against any judgment rendered in the action against that defendant.
  3. This section shall not apply if the offense of which the defendant was convicted was an offense established in Chapter 20 of the General Statutes.
  4. A plea of no contest shall be considered the same as a conviction for purposes of this section.

and until the defendant has paid in full the amount of restitution ordered or imposed. Except as provided in G.S. 15B-34, an action to recover damages arising out of the criminal offense shall not be commenced more than 10 years from the last act of the defendant giving rise to the cause of action.

History

(1989, c. 535, s. 1; 2004-159, s. 3.)

CASE NOTES

Statute of Limitation Tolled Even When Amount of Restitution Not Specified. - The statute of limitations was tolled for the plaintiff's civil action against the perpetrators of a criminal assault when the court decreed restitution for the victim with the amount unspecified but to be determined later. Whitley v. Kennerly, 132 N.C. App. 390, 512 S.E.2d 426 (1999), cert. denied, 350 N.C. 385, 536 S.E.2d 320 (1999).

Statute of Limitation Tolled. - Employer's claim to recover from a former employee, who embezzled from the employer, was not time-barred because the applicable statute of limitations for the employer's claim for recovery against the employee was tolled by G.S. 1-15.1(a) during the months in which the employee was to pay restitution, but did not, while a motion/agreement and order to defer prosecution was in effect. Dominion Radio Supply, Inc. v. Colclough, 218 N.C. App. 193, 721 S.E.2d 277 (2012).

Cited in Glens of Ironduff Prop. Owners Ass'n v. Daly, 224 N.C. App. 217, 735 S.E.2d 445 (2012).


§ 1-16: Repealed by Session Laws 1967, c. 954, s. 4.

§ 1-17. Disabilities.

  1. A person entitled to commence an action who is under a disability at the time the cause of action accrued may bring his or her action within the time limited in this Subchapter, after the disability is removed, except in an action for the recovery of real property, or to make an entry or defense founded on the title to real property, or to rents and services out of the real property, when the person must commence his or her action, or make the entry, within three years next after the removal of the disability, and at no time thereafter.
    1. The person is within the age of 18 years.
    2. The person is insane.
    3. The person is incompetent as defined in G.S. 35A-1101(7) or (8).
  2. For those persons under a disability on January 1, 1976, as a result of being imprisoned on a criminal charge, or in execution under sentence for a criminal offense, the statute of limitations shall commence to run and no longer be tolled from January 1, 1976.
  3. Notwithstanding the provisions of subsection (a) of this section, and except as otherwise provided in subsection (c) of this section, an action on behalf of a minor for malpractice arising out of the performance of or failure to perform professional services shall be commenced within the limitations of time specified in G.S. 1-15(c), except that if those time limitations expire before the minor attains the full age of 19 years, the action may be brought before the minor attains the full age of 19 years.
  4. (See editor's note for applicability) Notwithstanding the provisions of subsection (a) and (b) of this section, an action on behalf of a minor for injuries alleged to have resulted from malpractice arising out of a health care provider's performance of or failure to perform professional services shall be commenced within the limitations of time specified in G.S. 1-15(c), except as follows:
    1. If the time limitations specified in G.S. 1-15(c) expire before the minor attains the full age of 10 years, the action may be brought any time before the minor attains the full age of 10 years.
    2. If the time limitations in G.S. 1-15(c) have expired and before a minor reaches the full age of 18 years a court has entered judgment or consent order under the provisions of Chapter 7B of the General Statutes finding that said minor is an abused or neglected juvenile as defined in G.S. 7B-101, the medical malpractice action shall be commenced within three years from the date of such judgment or consent order, or before the minor attains the full age of 10 years, whichever is later.
    3. If the time limitations in G.S. 1-15(c) have expired and a minor is in legal custody of the State, a county, or an approved child placing agency as defined in G.S. 131D-10.2, the medical malpractice action shall be commenced within one year after the minor is no longer in such legal custody, or before the minor attains the full age of 10 years, whichever is later.
  5. Notwithstanding the provisions of subsections (a), (b), (c), and (e) of this section, a plaintiff may file a civil action against a defendant for claims related to sexual abuse suffered while the plaintiff was under 18 years of age until the plaintiff attains 28 years of age.
  6. Notwithstanding the provisions of subsections (a), (b), (c), and (d) of this section, a plaintiff may file a civil action within two years of the date of a criminal conviction for a related felony sexual offense against a defendant for claims related to sexual abuse suffered while the plaintiff was under 18 years of age.

For the purpose of this section, a person is under a disability if the person meets one or more of the following conditions:

History

(C.C.P., ss. 27, 142; Code, ss. 148, 163; 1899, c. 78; Rev., s. 362; C.S., s. 407; 1971, c. 1231, s. 1; 1975, c. 252, ss. 1, 3; 1975, 2nd Sess., c. 977, s. 3; 1987, c. 798; 2001-487, s. 1; 2011-400, s. 9; 2019-245, s. 4.1.)

Cross References. - As to the effect of lowering the age of majority from 21 to 18 upon the applicability of statute of limitations which has been tolled for infancy, see G.S. 48A-3.

Editor's Note. - Session Laws 2011-400, s. 9, which, in subsection (b), inserted "and except as otherwise provided in subsection (c) of this section," and added subsection (c), was applicable to causes of actions arising on or after October 1, 2011.

Session Laws 2019-245, s. 9(a), is a severability clause.

Session Laws 2019-245, s. 9(b), provides: "Prosecutions for offenses committed before the effective date of this act [December 1, 2019] are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.

Effect of Amendments. - Session Laws 2019-245, s. 4.1, effective December 1, 2019, added subsections (d) and (e).

Legal Periodicals. - For article, "Transferring North Carolina Real Estate Part I: How the Present System Functions," see 49 N.C.L. Rev. 413 (1971).

For survey of 1980 constitutional law, see 59 N.C.L. Rev. 1093 (1981).

For article, "Senate Bill 33 Grants Protection to Emergency Room Providers ... and Just About Everyone Else, Too," see 91 N.C.L. Rev. 720 (2013).

CASE NOTES

I. IN GENERAL.

History. - In 1899 the legislature struck the provisions which made coverture a disability on a par with the others enumerated in this section. Weathers v. Borders, 124 N.C. 610, 32 S.E. 881 (1899); Berry v. Lumber Co., 141 N.C. 386, 54 S.E. 278 (1906). See also, Lafferty v. Young, 125 N.C. 296, 34 S.E. 444 (1899); Swift v. Dixon, 131 N.C. 42, 42 S.E. 458 (1902).

Constitutionality of Subsection (b). - The statute requiring an action for malpractice in the performance of professional services for a minor to be brought before the minor attains the age of 19 when the three-year limitation of G.S. 1-15(c) expires before the minor attains the age of 19 does not violate the equal protection clauses of the North Carolina or United States Constitutions on the ground that a person has three years after reaching the age of 18 in which to bring other types of tort actions, since there is a substantial distinction between persons who have malpractice claims and those with other types of tort claims. Hohn v. Slate, 48 N.C. App. 624, 269 S.E.2d 307 (1980), cert. denied, 301 N.C. 720, 274 S.E.2d 229 (1981).

Former Law Unchanged. - There is nothing in this section which changes the law as it formerly existed. Frederick v. Williams, 103 N.C. 189, 9 S.E. 298 (1889).

Applicability of Section to Other Chapters. - The applicability of this section is not limited to the statutes of limitation found in Chapter 1 of the North Carolina General Statutes. Jefferys v. Tolin, 90 N.C. App. 233, 368 S.E.2d 201 (1988).

The six-month period of limitation of former G.S. 30-2 for dissenting from a will in probate was a statute of limitations which could be tolled by this section for a disability. In re Estate of Owens, 117 N.C. App. 118, 450 S.E.2d 2 (1994).

The six-month limitation period in G.S. 29-19(b), relating to notice of the claim of an illegitimate child to take from his father's estate, is a statute of limitation which is subject to being tolled under the provisions of this section. Jefferys v. Tolin, 90 N.C. App. 233, 368 S.E.2d 201 (1988).

Applicability to Products Liability Actions. - The clear and explicit intent of the legislature, as evidenced by the statutory language of the Products Liability Act itself, is to allow the statute of repose to be tolled if this section applies. Bryant v. Adams, 116 N.C. App. 448, 448 S.E.2d 832 (1994), cert. denied, 339 N.C. 736, 454 S.E.2d 647 (1995).

G.S. 1-15(c) and subsection (b) of this section must be construed in pari materia. Osborne ex rel. Williams v. Annie Penn Mem. Hosp., 95 N.C. App. 96, 381 S.E.2d 794, cert. denied, 325 N.C. 547, 385 S.E.2d 500 (1989).

This section does not completely eviscerate the statute of repose in the case of minors and others under disability. If a product is over six years old at the time of injury, which would be the time that the claim accrues, than the statute of repose operates as a total bar on that claim; however, if a claim accrues before the six year statute of repose has expired, this section simply operates to extend the time period within which a minor or other with disability may bring suit under Chapter 99B. Therefore, claims accruing after six years will still be barred. Bryant v. Adams, 116 N.C. App. 448, 448 S.E.2d 832 (1994), cert. denied, 339 N.C. 736, 454 S.E.2d 647 (1995).

Once the period of limitation begins to run, the subsequent accession of a minor to a right of action cannot toll its running. Davis v. E.I. DuPont DeNemours & Co., 400 F. Supp. 1347 (W.D.N.C. 1974).

Summary judgment was properly granted to a tire manufacturer on the ground that its products liability claims were barred by the six-year statute of repose in G.S. 1-50(a)(6) in that the tire in question was manufactured in 1995, and the accident occurred in 2002; as plaintiffs' only evidence was that the tire was manufactured in August 1995, the six-year statute of repose could have expired prior to the accrual of the minor plaintiffs' claims, and plaintiffs did not meet their burden under G.S. 1-17 of showing that the accident occurred less than six years after the tire was initially sold. Robinson v. Bridgestone/Firestone N. Am. Tire, L.L.C., 209 N.C. App. 310, 703 S.E.2d 883 (2011), review denied 365 N.C. 202, 710 S.E.2d 21, 2011 N.C. LEXIS 439 (N.C. 2011).

Tolling of Statute in Action by Beneficiary Against Trustee. - An action against a trustee for breach of fiduciary duty is a claim of the beneficiary, not the trust, and common provisions, such as this section, for the tolling of the statute of limitations are available to a beneficiary in an action against his trustee. Fortune v. First Union Nat'l Bank, 87 N.C. App. 1, 359 S.E.2d 801 (1987), rev'd on other grounds, 323 N.C. 146, 371 S.E.2d 483 (1988).

Applied in Simpson v. Hurst Performance, Inc., 437 F. Supp. 445 (M.D.N.C. 1977); Gibbs v. Gibbs, 59 N.C. App. 530, 297 S.E.2d 159 (1982).

Cited in Campbell v. Crater, 95 N.C. 156 (1886); County of Johnston v. Ellis, 226 N.C. 268, 38 S.E.2d 31 (1946); Franklin County v. Jones, 245 N.C. 272, 95 S.E.2d 863 (1957); Shearin v. Lloyd, 246 N.C. 363, 98 S.E.2d 508 (1957); Rowland v. Beauchamp, 253 N.C. 231, 116 S.E.2d 720 (1960); Jewell v. Price, 264 N.C. 459, 142 S.E.2d 1 (1965); Hanes Dye & Finishing Co. v. Caisson Corp., 309 F. Supp. 237 (M.D.N.C. 1970); Brantley v. Dunstan, 10 N.C. App. 706, 179 S.E.2d 878 (1971); Lane v. Aetna Cas. & Sur. Co., 48 N.C. App. 634, 269 S.E.2d 711 (1980); Wilkins v. Whitaker, 714 F.2d 4 (4th Cir. 1983); Crisp v. Benfield, 64 N.C. App. 357, 307 S.E.2d 179 (1983); Vaughan v. Moore, 89 N.C. App. 566, 366 S.E.2d 518 (1988); Glens of Ironduff Prop. Owners Ass'n v. Daly, 224 N.C. App. 217, 735 S.E.2d 445 (2012); Williams v. Advance Auto Parts, Inc., 251 N.C. App. 712, 795 S.E.2d 647 (2017), review denied, 2017 N.C. LEXIS 325 (2017).

II. MINORS.

Effect of Failure of Guardian to Sue. - Failure of the guardian to institute actions which he has the authority and duty to bring on behalf of his ward is the failure of the ward, entailing the same legal consequences with respect to the bar of the statutes of limitation. Johnson v. Pilot Life Ins. Co., 217 N.C. 139, 7 S.E.2d 475, 128 A.L.R. 1375 (1940).

The statute of limitations begins to run against an infant or an insane person who is represented by a guardian at the time the cause of action accrues. First-Citizens Bank & Trust Co. v. Willis, 257 N.C. 59, 125 S.E.2d 359 (1962).

It is the rule in this State that, except in suits for realty where the legal title is in the ward, the statute of limitations begins to run against an infant who is represented by a general guardian as to any action which the guardian could or should bring at the time the cause of action accrues. Teele v. Kerr, 261 N.C. 148, 134 S.E.2d 126 (1964).

As a minor's legal representative with the authority and directive to act, a guardian ad litem advocates for the legal rights of the minor in the minor's stead, and the trial court's appointment of a guardian ad litem on behalf of a minor therefore removes that minor's disability of minority and starts the running of the statute of limitations; the statute of limitations continues to run even if the guardian ad litem files and then dismisses a legal action. King v. Albemarle Hosp. Auth., 370 N.C. 467, 809 S.E.2d 847 (2018).

Because a court-appointed guardian ad litem has the duty to pursue the minor's claim within the statute of limitations, a failure to do so time bars the claim. King v. Albemarle Hosp. Auth., 370 N.C. 467, 809 S.E.2d 847 (2018).

As to effect of failure of guardian having right to sue to do so, see also Cross v. Craven, 120 N.C. 331, 26 S.E. 940 (1897).

Removal of Disability Triggers Running of Statute of Limitations. - Language of "Notwithstanding the provisions of subsection (a)" refers to the reduced time period to bring an action, and like subsection (a), subsection (b) still allows the minor to reach adulthood before requiring him or her to pursue his or her medical malpractice claim, assuming his or her disability is otherwise uninterrupted; removal of the disability either by reaching the age of majority or by appointment of a guardian ad litem triggers the running of the statute of limitations. King v. Albemarle Hosp. Auth., 370 N.C. 467, 809 S.E.2d 847 (2018).

If an infant or insane person has no guardian at the time the cause of action accrues, then the statute begins to run upon the appointment of a guardian or upon the removal of the disability as provided by this section, whichever shall occur first. First-Citizens Bank & Trust Co. v. Willis, 257 N.C. 59, 125 S.E.2d 359 (1962); Teele v. Kerr, 261 N.C. 148, 134 S.E.2d 126 (1964).

Effect of Mother's Suit as Next Friend for Daughter. - For purposes of the North Carolina law of limitations, the filing of a complaint in federal district court in West Virginia by mother as next friend for her minor daughter did not constitute the appointment of the mother as a guardian ad litem charged with the duty of bringing the suit, and therefore did not start the running of the statute of limitations. Genesco, Inc. v. Cone Mills Corp., 604 F.2d 281 (4th Cir. 1979).

Running of Statute Against Beneficiaries When It Runs Against Trustee. - Where a trust has a claim against a third party, and the trustee is competent to sue, a statute of limitations will be deemed to have run against all beneficiaries, regardless of minority, when it has run against the trustee. Fortune v. First Union Nat'l Bank, 87 N.C. App. 1, 359 S.E.2d 801 (1987), rev'd on other grounds, 323 N.C. 146, 371 S.E.2d 483 (1988).

Running of Statute Against Minor Beneficiaries When It Runs Against Administratrix. - Where the statute of limitation had run against the administratrix, it had also run against the minor beneficiaries of a wrongful death settlement. Boomer v. Caraway, 116 N.C. App. 723, 449 S.E.2d 215 (1994), aff'd in part, rev'd in part, per curiam, 342 N.C. 186, 463 S.E.2d 230 (1995).

Running of Statute Where No Final Account Filed. - When no final account has been filed, the statute begins to run from the arrival of the ward at age. Self v. Shugart, 135 N.C. 185, 47 S.E. 484 (1904).

Action on Judgment Secured During Infancy. - This section permits an individual to bring an action on a judgment secured during his infancy by a next friend within the time limited by G.S. 1-47(1), i.e., ten years after he becomes twenty-one years old. Teele v. Kerr, 261 N.C. 148, 134 S.E.2d 126 (1964).

Dismissal of Civil Rights Claim Denied. - Motion for dismissal of an action under 42 U.S.C. § 1983 would be denied where (1) juvenile was 14 years old when the alleged incident took place, (2) juvenile was now only 17 years of age, and (3) pursuant to subdivision (a)(1) of this section, the statute of limitations had not begun to run against the juvenile. Simmons v. Justice, 87 F. Supp. 2d 524 (W.D.N.C. 2000).

Action Not Barred. - Summary judgment pursuant to G.S. 1A-1, N.C. R. Civ. P. 56(c) was improperly granted in the youngest child's claim against the father alleging fraud, among other things, because the action was not barred by res judicata and collateral estoppel, and the youngest child filed the action within three years of when the child reached the age of majority, as required under G.S. 1-52 and G.S. 1-17(a). Beall v. Beall, 156 N.C. App. 542, 577 S.E.2d 356 (2003).

Action Held Barred. - Summary judgment pursuant to G.S. 1A-1, N.C. R. Civ. P. 56(c) was properly granted in the older child's claim against the father alleging fraud, among other things; because the claim accrued when the child was a minor, the child was required under G.S. 1-17(a) and G.S. 1-52 to file the claim within three years of reaching majority, which the child failed to do, as the summons and complaint, which began the lawsuit pursuant to G.S. 1A-1, N.C. R. Civ. P. 3, were not issued until after the deadline had passed. Beall v. Beall, 156 N.C. App. 542, 577 S.E.2d 356 (2003).

Court of appeals erred in reversing an order dismissed a child's medical malpractice claims as time barred because the child filed his action after the statute of limitations expired, and the appointment of a guardian ad litem provided the child a legal representative and removed his disability of minority; the removal of the disability eliminates the tolling and starts the running of the applicable three-year statute of limitations for medical malpractice actions. King v. Albemarle Hosp. Auth., 370 N.C. 467, 809 S.E.2d 847 (2018).

III. INSANITY.

.

Detention in Asylum by Defendant's Wrongful Act. - Where plaintiff's cause of action was based upon alleged wrongful act of defendant in causing plaintiff's detention in an insane asylum, as to defendant plaintiff was non sui juris for the period during which he was detained, and the statute of limitations did not run against plaintiff's cause of action during that period. Jackson v. Parks, 216 N.C. 329, 4 S.E.2d 873 (1939).

Test of Disability. - Although the disability statute which operates to toll the statute of limitations, subsection (a) of this section, provides for tolling for persons who are "insane" when their "cause of action" accrues, under the decisional and statutory law of this state, the appropriate test is one of mental competence to manage one's own affairs. Cox v. Jefferson-Pilot Fire & Cas. Co., 80 N.C. App. 122, 341 S.E.2d 608, cert. denied, 317 N.C. 702, 347 S.E.2d 38 (1986).

IV. INCOMPETENCY.

.

Post-Traumatic Stress Syndrome. - Plaintiff's repression of memories and post-traumatic stress syndrome suffered as a result of her grandmother's alleged sexual, physical, and emotional abuse rendered plaintiff "incompetent", thereby tolling the statute of limitations so that summary judgment for defendant was improper. Leonard v. England, 115 N.C. App. 103, 445 S.E.2d 50, cert. granted, 337 N.C. 801, 449 S.E.2d 571 (1994), cert. denied, 340 N.C. 113, 455 S.E.2d 663 (1995).

Test for whether incompetency exists. - The appropriate test for establishing an adult incompetent is one of mental competence to manage one's own affairs. State Farm Fire & Cas. Co. v. Darsie, 161 N.C. App. 542, 589 S.E.2d 391 (2003), cert. denied, 358 N.C. 241, 594 S.E.2d 194 (2004), cert. dismissed, 358 N.C. 241, 594 S.E.2d 193 (2004).

Where defendants had sufficient notice from allegations in plaintiff's complaint that he may have been prevented from filing his clams due to mental disability as he alleged that he suffered several mental breakdowns, that he was diagnosed with post traumatic stress disorder, and that due to his mental illness he was rendered incompetent within the meaning of G.S. 35A-1101(7), the applicable statute of limitations was tolled. Soderlund v. North Carolina Sch. of Arts, 125 N.C. App. 386, 481 S.E.2d 336 (1997).

Education of Handicapped Act. - Where mentally handicapped woman reached age 18 on February 9, 1984, and her guardian ad litem filed suit against the Board of Education in 1986 seeking reimbursement for the depletion of her health insurance benefits used to pay for her education under the Education of the Handicapped Act, the handicapped woman's cause of action was not time barred as she timely filed after attaining her majority and having a guardian appointed; district court properly found G.S. 1-52(2) was tolled by handicapped woman's infancy and incompetency pursuant to this section. Shook ex rel. Shook v. Gaston County Bd. of Educ., 882 F.2d 119 (4th Cir. 1989), cert. denied, 493 U.S. 1093, 110 S. Ct. 1166, 107 L. Ed. 2d 1069 (1990).

Tolling of Statute for Employee. - Employee specifically alleged that after an alleged sexual assault the employee was placed on medical leave by a psychiatrist, suffered a nervous breakdown, and could not manage the employee's own affairs; thus, the employee sufficiently alleged that the employee was an incompetent adult and was under a disability pursuant to G.S. 1-17(a) such that the staute of limitations was tolled. Fox v. Sara Lee Corp., 210 N.C. App. 706, 709 S.E.2d 496 (2011).

Tolling of Statute for Incompetent Widow. - Where widow was incompetent and without a guardian at all times during the administration of her husband's estate all statutes of limitations for civil actions under Chapter 1 of the General Statutes applicable to her were tolled by this section until the removal of her disability or the appointment of a guardian. In re Estate of Owens, 117 N.C. App. 118, 450 S.E.2d 2 (1994).

Tolling of Statute for Incompetent Daughter. - The statute of limitations was tolled for woman who was not yet adjudicated incompetent although, in fact, she clearly was. Fox v. Health Force, Inc., 143 N.C. App. 501, 547 S.E.2d 83 (2001).

Incompetency Not Shown. - The plaintiff failed to establish that he was an "incompetent adult" within the meaning of the statute where his only allegation regarding his incompetency was that his mental condition "caused him to be incapable of understanding his legal rights, making or communicating important decisions about those rights or bringing a lawsuit," but he was able to arrange for places to live, signed leases, cooked, went shopping, held several jobs, attended college at two institutions, obtained and renewed driver's licenses from three states, drove vehicles, owned farmland, traveled and lived in foreign countries, produced a ballet, and created music. Soderlund v. Kuch, 143 N.C. App. 361, 546 S.E.2d 632, review denied, 353 N.C. 729, 551 S.E.2d 438 (2001).

While there was competent evidence that a wife of an insurance policyholder was extremely and unfortunately injured by the accident, in and out of hospitals, and on and off of many painkillers, there was also evidence that she was able to name an attorney-in-fact to handle her insurance claims; therefore, the wife did not show sufficient competent evidence that her injury made her incapable of managing her own affairs to allow a disability tolling of the fraud statute of limitations under G.S. 1-52(9). State Farm Fire & Cas. Co. v. Darsie, 161 N.C. App. 542, 589 S.E.2d 391 (2003), cert. denied, 358 N.C. 241, 594 S.E.2d 194 (2004), cert. dismissed, 358 N.C. 241, 594 S.E.2d 193 (2004).

Pleading Not Required. - Plaintiff was not required to plead mental disability in avoidance of the affirmative defense of statute of limitations. Dunkley v. Shoemate, 121 N.C. App. 360, 465 S.E.2d 319 (1996).

V. MALPRACTICE.

.

Appointment of Guardian Has No Effect on Tolling Provision. - Appointment of a guardian for a minor does not render the tolling provisions of subsection (b) inapplicable to the minor; therefore, where guardian was appointed for minor and action on behalf of minor for medical malpractice was filed more than five years after that appointment but before minor reached 19, the cause of action was not barred by the statute of limitations. Osborne ex rel. Williams v. Annie Penn Mem. Hosp., 95 N.C. App. 96, 381 S.E.2d 794, cert. denied, 325 N.C. 547, 385 S.E.2d 500 (1989).

A claimant in a professional malpractice case must file the action within the time limitations contained in G.S. 1-15(c), unless that period expires before the claimant reaches 19 years of age, in which case claimant may bring the action at any time before he or she reaches age 19. Osborne ex rel. Williams v. Annie Penn Mem. Hosp., 95 N.C. App. 96, 381 S.E.2d 794, cert. denied, 325 N.C. 547, 385 S.E.2d 500 (1989).

Plaintiff's claim based on medical malpractice was barred by the three-year statute of limitations of G.S. 1-15(c) and the provisions of subsection (b) of this section where the last act of negligence by defendants allegedly occurred in 1962 when plaintiff was four years old and plaintiff filed his claim one day before his twentieth birthday, there being no merit to plaintiffs' contention that subsection (b) does not apply to an action brought by a plaintiff in his own behalf. Hohn v. Slate, 48 N.C. App. 624, 269 S.E.2d 307 (1980), cert. denied, 301 N.C. 720, 274 S.E.2d 229 (1981).

VI. ADVERSE POSSESSION.

.

Section Relates to True Title. - Adverse possession relates only to the true title, and the exemptions in the statute as to disability can apply only to one having, by virtue of this title, a right of entry or of action. Berry v. Lumber Co., 141 N.C. 386, 54 S.E. 278 (1906).

Disability Beginning After Commencement of Running of Statute. - Where the statute of limitations begins to run in favor of one in adverse possession against owner, and the owner thereafter dies leaving heirs who are minors, their disability of infancy does not affect the operation of the statute, since the disability is subsequent to commencement of the running of the statute. Battle v. Battle, 235 N.C. 499, 70 S.E.2d 492 (1952).

Effect of Disability Continuing Throughout Life. - If the disability continued during life, and for a period thereafter sufficient to complete the prescribed time of seven years, the title would be perfected in the occupant, subordinate only to a right in the heir to sue for the recovery of the land for the space of three years next after his death. The running of the statute against the action and to consummate the title would be concurrent after the decease of the grantor. Ellington v. Ellington, 103 N.C. 54, 9 S.E. 208 (1889).

Adverse Possession. - Seven years' adverse possession under color of title is no bar to an action of ejectment where the person entitled to commence the same is an infant at the time the title to the land descends to him and sues within three years next after full age. Clayton v. Rose, 87 N.C. 106 (1882).

If land is held adversely to an insane person for such length of time as would bar his recovery if sane, such insane person, or those claiming under him, must commence an action within three years after the disability of insanity is removed, or their rights to recover will be barred. Warlick v. Plonk, 103 N.C. 81, 9 S.E. 190 (1889).

A cause of action to set aside a deed executed by a person who is non compos mentis must be brought within seven years from the date of execution, or within three years next after the removal of the disability, whichever period expires later. Emanuel v. Emanuel, 78 N.C. App. 799, 338 S.E.2d 620 (1986).


§ 1-18. Disability of marriage.

In any action in which the defense of adverse possession is relied upon, the time computed as constituting such adverse possession shall not include any possession had against a feme covert during coverture prior to February 13, 1899.

History

(1899, c. 78, ss. 2, 3; Rev., s. 363; C.S., s. 408.)

Cross References. - For constitutional provision concerning property of married women, see N. C. Const., Art. X, § 4.

As to status of married women in civil actions and with reference to property in general, see G.S. 52-1.

Legal Periodicals. - For discussion of this section, see 2 N.C.L. Rev. 181 (1924).

CASE NOTES

Effect of Section. - Under the provisions of this section, and G.S. 52-1 et seq., passed in pursuance of Const. 1868, Art. X, § 6, husband and wife are authorized to contract and deal with their separate property, subject to specific exceptions, as if they were unmarried. Roberts v. Roberts, 185 N.C. 566, 118 S.E. 9, 29 A.L.R. 1479 (1923).

Section Contemplates True Owner. - A possession cannot be adverse, within the meaning of this section, to anyone who has no title or right of entry or action. It cannot be adverse to one who is a mere stranger to the true title and who has no claim whatever to the land, for he has no right which may be barred by such a possession. It has sole reference to the owner of the title. Berry v. Lumber Co., 141 N.C. 386, 54 S.E. 278 (1906).

Since passage of this section coverture is not a defense in bar of the running of the statute of limitations. Carter v. Reaves, 167 N.C. 131, 83 S.E. 248 (1914).

Since passage of this section, if feme covert's right of entry and title were defeated by defendants' adverse possession for seven years under color of title before her action was commenced, the plea of coverture would not avail her. Bond v. Beverly, 152 N.C. 56, 67 S.E. 55 (1910).

In a suit to cancel deeds because of the mental incapacity of the grantor to make them, under which deeds defendant in possession claimed title by adverse possession under color, coverture of plaintiff would not avail her to repel the bar of the statute of limitations which had run in favor of defendant's title. Butler v. Bell, 181 N.C. 85, 106 S.E. 217 (1921).

Effect of Statute upon Proof. - Until twenty years had elapsed since the passage of this section, one claiming title by adverse possession had the burden of proving that the statute began to run prior to the disability of coverture. Holmes v. Carr, 172 N.C. 213, 90 S.E. 152 (1916).

Matter Not Moot Due to Collateral Consequences. - Although a father regained full custody of his child, since there were collateral legal consequences that could arise from a neglect adjudication, such as a determination of whether another child was neglected, the appeal from the adjudication of neglect should not have been dismissed as moot. In re A.K., 360 N.C. 449, 628 S.E.2d 753 (2006).


§ 1-19. Cumulative disabilities.

When two or more disabilities coexist at the time the right of action accrues, or when one disability supervenes an existing one, the limitation does not attach until they all are removed.

History

(C.C.P., ss. 28, 49; Code, ss. 149, 170; Rev., s. 364; C.S., s. 409.)

CASE NOTES

Cumulative disabilities will only prevent running of statute before it has started. Any number, after the statute has once begun to run, will not suspend or arrest its operation. Holmes v. Carr, 172 N.C. 213, 90 S.E. 152 (1916).

This section can have no application when there is a clear running of the statute for the period fixed after the disability is removed, as when an infant attains his majority. Campbell v. Crater, 95 N.C. 156 (1886).

Length of Time of Disabilities Immaterial. - The length of time elapsing during cumulative disabilities, so long as the disabilities are continuous, is immaterial. Epps v. Flowers, 101 N.C. 158, 7 S.E. 680 (1888).

For cases in which the former disability of coverture supervened upon the disability of infancy, see Clayton v. Rose, 87 N.C. 106 (1882); Epps v. Flowers, 101 N.C. 158, 7 S.E. 680 (1888); Cross v. Craven, 120 N.C. 331, 26 S.E. 940 (1897); Lafferty v. Young, 125 N.C. 296, 34 S.E. 444 (1899).


§ 1-20. Disability must exist when right of action accrues.

No person may avail himself of a disability except as authorized in G.S. 1-19, unless it existed when his right of action accrued.

History

(C.C.P., s. 48; Code, s. 169; Rev., s. 365; C.S., s. 410.)

CASE NOTES

Once the statute begins to run nothing stops it. Fulp v. Fulp, 264 N.C. 20, 140 S.E.2d 708 (1965).

When the statute of limitations commences to run, nothing stops it. When it begins to run against the ancestor, it continues to run against the heir, although the heir is under disability when the descent is cast. Frederick v. Williams, 103 N.C. 189, 9 S.E. 298 (1889). See also, Asbury v. Fair, 111 N.C. 251, 16 S.E. 467 (1892); Clendenin v. Clendenin, 181 N.C. 465, 107 S.E. 458 (1921).

The principle of this section applies where defendant leaves the State after the cause of action accrues. Blue v. Gilchrist, 84 N.C. 239 (1881). But see § 1-21.

Cited in Shearin v. Lloyd, 246 N.C. 363, 98 S.E.2d 508 (1957).


§ 1-21. Defendant out of State; when action begun or judgment enforced.

If when the cause of action accrues or judgment is rendered or docketed against a person, he is out of the State, action may be commenced, or judgment enforced within the times herein limited after the return of the person into this State, and if, after such cause of action accrues or judgment is rendered or docketed, such person departs from and resides out of this State, or remains continuously absent therefrom for one year or more, the time of his absence shall not be a part of the time limited for the commencement of the action or the enforcement of the judgment. Provided, that where a cause of action arose outside of this State and is barred by the laws of the jurisdiction in which it arose, no action may be maintained in the courts of this State for the enforcement thereof, except where the cause of action originally accrued in favor of a resident of this State.

The provisions of this section shall not apply to the extent that a court of this State has or continues to have jurisdiction over the person under the provisions of G.S. 1-75.4.

History

(C.C.P., s. 41; 1881, c. 258, ss. 1, 2; Code, s. 162; Rev., s. 366; C.S., s. 411; 1955, c. 544; 1979, c. 525, s. 1.)

Legal Periodicals. - For brief comment on the 1955 amendment, see 33 N.C.L. Rev. 531 (1955).

For note on choice of law rules in North Carolina, see 48 N.C.L. Rev. 243 (1970).

For article, "Statutes of Limitations in the Conflict of Laws," see 52 N.C.L. Rev. 489 (1974).

For comment discussing perceived conflict between G.S. 1-75.4 and this section prior to enactment of the second paragraph thereof, see 12 Wake Forest L. Rev. 1041 (1976).

For survey of 1976 case law on civil procedure, see 55 N.C.L. Rev. 914 (1977).

For survey of 1979 law on civil procedure, see 58 N.C.L. Rev. 1261 (1980).

CASE NOTES

I. IN GENERAL.

Effect of 1979 Amendment. - The addition in 1979 of the second paragraph to this section provides, in effect, that this section is not applicable to toll a statute of limitations if a defendant is amenable to long-arm jurisdiction under G.S. 1-75.4. Tierney v. Garrard, 124 N.C. App. 415, 477 S.E.2d 73 (1996), cert. granted, 345 N.C. 760, 485 S.E.2d 309 (1997), aff'd, 347 N.C. 258, 490 S.E.2d 237 (1997).

The plain language of the second paragraph of this section is unambiguous and does not limit the exemption from its tolling provisions to those defendants amenable only to personal process. Tierney v. Garrard, 124 N.C. App. 415, 477 S.E.2d 73 (1996), cert. granted, 345 N.C. 760, 485 S.E.2d 309 (1997), aff'd, 347 N.C. 258, 490 S.E.2d 237 (1997).

Purpose of Section. - One of the purposes of this section is to prevent defendants from having the benefit of the lapse of time, i.e., the statute of limitations, while they remain beyond the limits of the State and allow their debts to remain unpaid, it not being the policy of the State to drive its citizens to seek their legal remedies abroad. Duke Univ. v. Chestnut, 28 N.C. App. 568, 221 S.E.2d 895, appeal dismissed, 289 N.C. 726, 224 S.E.2d 674 (1976).

The purpose of this section is to prevent defendants from having the benefit of the statute of limitation while they permit past due debts to remain unpaid or other causes of action against them to remain undischarged, and keep beyond the limits of the State and the jurisdiction of its courts, thus preventing the person having the right to sue from doing so. Merchants & Planters Nat'l Bank v. Appleyard, 238 N.C. 145, 77 S.E.2d 783 (1953).

The general purpose of this section, taken in connection with the statute of limitation, is to give the person having an accrued cause of action or judgment, as prescribed, opportunity substantially during the whole of the lapse of the time against him to bring his action or enforce his judgment. Armfield v. Moore, 97 N.C. 34, 2 S.E. 347 (1887).

The words "any person" are employed to designate the person to be affected and embraced by the section; they are very comprehensive, and there is nothing in the section's scope or purpose that excludes nonresidents. Armfield v. Moore, 97 N.C. 34, 2 S.E. 347 (1887); Merchants & Planters Nat'l Bank v. Appleyard, 238 N.C. 145, 77 S.E.2d 783 (1953).

"The times herein limited" means the time prescribed elsewhere in the Code or in statutes amending or passed as substitutes therefor. The plain intent of the statute is to put nonresidents on the same footing as residents. Armfield v. Moore, 97 N.C. 34, 2 S.E. 347 (1887); Williams v. Iron Belt Bldg. & Loan Ass'n, 131 N.C. 267, 42 S.E. 607 (1902); Hill v. Lindsay, 210 N.C. 694, 188 S.E. 406 (1936).

This statutory provision prescribes three distinct cases in which the statute will not operate as a bar because of the continuous lapse of the time prescribed next after the cause of action accrued or judgment was rendered or docketed: (1) Where the debtor was out of the State at the time the cause of action accrued or the judgment was rendered or docketed. This case may apply alike to a resident or nonresident debtor. In such a case time does not begin to lapse in his favor until he returns to the State, not simply on a hasty visit of a day or two, at long intervals, but for the purpose of residence. And if, after such returns, he departs from the State for the purpose of residence out of it, or to sojourn out of it for a year or more, the time of his absence will not be allowed in his favor; it will be subtracted from the time that would have been so allowed if he had remained in the State. (2) When, after the cause of action accrued or the judgment was rendered or docketed, the debtor, either a resident or nonresident of the State, departs from and resides out of it, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action or the enforcement of such judgment. (3) When, after the cause of action has accrued or judgment has been rendered or docketed, the debtor departs from the State, and remains continually absent for the space of one year or more, the time of his absence shall not be allowed in his favor. Armfield v. Moore, 97 N.C. 34, 2 S.E. 347 (1887); Arthur v. Henry, 157 N.C. 393, 73 S.E. 206 (1911).

The statute of limitations is suspended in the following cases: (1) When the person against whom a cause of action exists becomes a nonresident, whether he remains continuously absent for a year or occasionally visits the State; (2) When such person retains his residence, but is absent from the State continuously for one year or more. Lee v. McKoy, 118 N.C. 518, 24 S.E. 210 (1896).

Effect of Absence of Debtor Before Accrual of Action. - Where a debtor is out of the State at the time the cause of action accrues, the statute of limitation does not begin to run until he returns to this State for the purpose of making it his residence. Armfield v. Moore, 97 N.C. 34, 2 S.E. 347 (1887).

Nature of Return to State. - The "return to the State" specified by this section as necessary to put the statute in motion is a return with a view to residence, not a casual appearance in the State, passing through it, or even making a visit here. Lee v. McKoy, 118 N.C. 518, 24 S.E. 210 (1896).

When a person becomes a nonresident it is not necessary that he remain continuously out of the State one year to stop the running of the statute, nor would occasional visits to the State put the statute in motion. Lee v. McKoy, 118 N.C. 518, 24 S.E. 210 (1896).

Short Annual Visits Held Insufficient to Start Statute. - Where debtor was a nonresident of this State but was here on a visit of a day or two each year, such visits would not have the effect of putting the statute in motion. Armfield v. Moore, 97 N.C. 34, 2 S.E. 347 (1887).

This section is applicable to actions in rem as well as actions in personam, no exception being made. Love v. West, 169 N.C. 13, 84 S.E. 1048 (1915).

Fact that nonresident debtor has property within the State will not affect this section, which suspends the operation of the statute of limitations for the period during which the person against whom the demand is made is out of the State. Grist v. Williams, 111 N.C. 53, 15 S.E. 889 (1892).

This section is not applicable after the statute of limitation has run. Southern Ry. v. Mayes, 113 F. 84 (4th Cir. 1902), cert. denied, 186 U.S. 483, 22 S. Ct. 942, 46 L. Ed. 1260 (1902).

This section is not applicable if a defendant is subject to long-arm jurisdiction. Stokes v. Wilson & Redding Law Firm, 72 N.C. App. 107, 323 S.E.2d 470 (1984), cert. denied, 313 N.C. 612, 332 S.E.2d 83 (1985).

The "borrowing provision" of this section is not applicable if a defendant is subject to long-arm jurisdiction under G.S. 1-75.4. Laurent v. USAIR, Inc., 124 N.C. App. 208, 476 S.E.2d 443 (1996), cert. denied, 346 N.C. 178, 486 S.E.2d 205 (1997).

Personal jurisdiction over defendants under G.S. 1-75.4, standing alone, is not sufficient to place plaintiff's action outside this section. Plaintiff must also be a resident of this State at the time his action originally accrued in order to maintain an action in the courts of this State which is barred by the laws of the jurisdiction in which it arose. Glynn v. Stoneville Furn. Co., 85 N.C. App. 166, 354 S.E.2d 552, cert. denied, 320 N.C. 512, 358 S.E.2d 518 (1987).

When a nonresident defendant is amenable to process there is no need for a tolling statute. Duke Univ. v. Chestnut, 28 N.C. App. 568, 221 S.E.2d 895, appeal dismissed, 289 N.C. 726, 224 S.E.2d 674 (1976), decided prior to enactment of second paragraph of this section.

Application of a tolling statute such as this section when defendant has at all times been subject to the service of process under G.S. 1-75.4(5) is inimical to the general purposes of statutes of limitations. Such statutes exist to eliminate the injustice which may result from the assertion of stale claims by providing a reasonable but definite time within which a claim must be prosecuted in the courts or be forever barred. Duke Univ. v. Chestnut, 28 N.C. App. 568, 221 S.E.2d 895, appeal dismissed, 289 N.C. 726, 224 S.E.2d 674 (1976), decided prior to enactment of second paragraph of this section.

No Conflict with Long-Arm Statute. - Fact that there is little need to give effect to a tolling statute when a nonresident is amenable to service that will confer personal jurisdiction over him does not place the tolling statute in hopeless conflict with the long-arm jurisdictional statute. Full effect can be given to both of the statutes. Duke Univ. v. Chestnut, 28 N.C. App. 568, 221 S.E.2d 895, appeal dismissed, 289 N.C. 726, 224 S.E.2d 674 (1976), decided prior to enactment of second paragraph of this section.

G.S. 1-105 and G.S. 1-105.1 Not in Conflict with Section. - G.S. 1-105 and G.S. 1-105.1, providing for substitute service of a nonresident motorist by service upon the Commissioner of Motor Vehicles, are not in conflict with and do not repeal this section, even though there is no need for a tolling statute when a nonresident defendant is amenable to process. Travis v. McLaughlin, 29 N.C. App. 389, 224 S.E.2d 243, cert. denied, 290 N.C. 555, 226 S.E.2d 513 (1976).

Right of Foreign Corporations to Plead Statute. - As to right of foreign corporations to plead the statute of limitations when required by statute to maintain an agent in the State for service of process, see Volivar v. Richmond Cedar Works, 152 N.C. 656, 68 S.E. 200 (1910).

A corporation can actually be present in the State by continuously doing business in North Carolina through its agents, even though place of incorporation and principal place of business are in foreign states. Bobbitt v. Tannewitz, 538 F. Supp. 654 (M.D.N.C. 1982).

Where the seller has continuously done business in North Carolina since plaintiff's claims accrued, the seller has been sufficiently "present" in the State to warrant the protection of the statutes of limitations. Bobbitt v. Tannewitz, 538 F. Supp. 654 (M.D.N.C. 1982).

As to general rule regarding application of statutes of this character to actions pending at the time they take effect, provided the actions have not been barred by a previous limitation, see Cox v. Brown, 51 N.C. 100 (1858).

Burden of proof is upon plaintiff to show that defendant comes within the purview of this section. Burkhimer v. Gealy, 39 N.C. App. 450, 250 S.E.2d 678, cert. denied, 297 N.C. 298, 254 S.E.2d 918 (1979). See also, Savage v. Currin, 207 N.C. 222, 176 S.E. 569 (1934).

Where plaintiff's affidavits did not even suggest that defendant left North Carolina at any time, this section could not apply. Sunamerica Fin. Corp. v. Bonham, 328 N.C. 254, 400 S.E.2d 435 (1991).

Suspension of Operation of G.S. 1-53. - The existence of the conditions enumerated in this section will suspend the operation of G.S. 1-53. Williams v. Iron Belt Bldg. & Loan Ass'n, 131 N.C. 267, 42 S.E. 607 (1902).

Enforcement of Resulting Trust. - Where a cause of action to enforce a resulting trust existed for more than 10 years, but after subtracting the length of time the trustee thereof had been out of the State the elapsed time was less than 10 years, then under this section the cause of action was not barred by the 10-year statute. Miller v. Miller, 200 N.C. 458, 157 S.E. 604 (1931).

Proceedings against bail in civil actions are barred, unless commenced within three years after judgment against the principal, notwithstanding the principal may have left the State in the meanwhile. Albemarle Steam Nav. Co. v. Williams, 111 N.C. 35, 15 S.E. 877 (1892).

Applied in Stokes v. Southeast Hotel Properties, Ltd., 877 F. Supp. 986 (W.D.N.C. 1994).

Cited in Williams v. Iron Belt Bldg. & Loan Ass'n, 131 N.C. 267, 42 S.E. 607 (1902); Love v. West, 169 N.C. 13, 84 S.E. 1048 (1915); Bridger v. Mitchell, 187 N.C. 374, 121 S.E. 661 (1924); Osborne v. Board of Educ. ex rel. State, 207 N.C. 503, 177 S.E. 642 (1935); Miller v. Perry, 456 F.2d 63 (4th Cir 1972); Joyner v. Lucas, 42 N.C. App. 541, 257 S.E.2d 105 (1979); Ryan v. Brooks, 634 F.2d 726 (4th Cir. 1980); Deadwyler v. Volkswagen of Am., Inc., 134 F.R.D. 128 (W.D.N.C. 1991); Taylor v. Taylor, 143 N.C. App. 664, 547 S.E.2d 161 (2001).

II. CAUSES OF ACTION ARISING OUTSIDE STATE.

Purpose of Proviso in First Paragraph. - The legislature intended the proviso added by the 1955 amendment to be a limited borrowing statute, operating to bar prosecution in this State of all claims barred either in the state of their origin or in this State. Little v. Stevens, 267 N.C. 328, 148 S.E.2d 201 (1966).

The proviso in this section is not a limitation upon the tolling provisions of the statute, but is a limited borrowing statute, operating to bar prosecution in this State of all claims barred either in the state of their origin or in this State. Broadfoot v. Everett, 270 N.C. 429, 154 S.E.2d 522 (1967).

The 1955 amendment was designed (1) to clarify the law and (2) to bar stale out-of-state claims. To treat the proviso merely as a limitation on the tolling portion of the statute would accomplish neither of these purposes. Giving the language of the proviso its ordinary meaning, it is a limited borrowing statute which bars all stale foreign claims. Little v. Stevens, 267 N.C. 328, 148 S.E.2d 201 (1966).

The second sentence of this section, the "borrowing statute" element, limits the effect of the first sentence by applying the foreign state's statute of limitation in those situations where the foreign statute would bar the action; in other words, the "borrowing statute" will prevent a plaintiff from retaining the right to sue indefinitely. Cochrane v. Turner, 582 F. Supp. 971 (W.D.N.C. 1983).

Certain Claims Barred by Proviso. - Treating the proviso as a limited borrowing statute, no action barred in the state of origin may be litigated here. Little v. Stevens, 267 N.C. 328, 148 S.E.2d 201 (1966).

Unless They Originally Accrued in Favor of Resident. - This section now bars all stale foreign claims unless they originally accrued in favor of a resident of North Carolina. Broadfoot v. Everett, 270 N.C. 429, 154 S.E.2d 522 (1967).

Ancillary Administrator Is Not Resident to Whom Wrongful Death Claim Accrues. - The fact that an action for wrongful death is brought by an ancillary administrator appointed in this State does not make the action one accruing to a resident of this State within the meaning of the proviso to this section. Broadfoot v. Everett, 270 N.C. 429, 154 S.E.2d 522 (1967).

Wrongful Death Claim Barred Where It Arose Is Also Barred in This State. - Where, at the time a wrongful death action was instituted here, it was barred in Pennsylvania where it arose, it was also barred in North Carolina. Broadfoot v. Everett, 270 N.C. 429, 154 S.E.2d 522 (1967).

Right to Maintain Action After Barred in Other Jurisdiction. - After a cause of action has been barred in the jurisdiction where it arose, only a plaintiff who was a resident of North Carolina at the time the cause of action originally accrued has the right to maintain an action in the courts of North Carolina. Laurent v. USAIR, Inc., 124 N.C. App. 208, 476 S.E.2d 443 (1996), cert. denied, 346 N.C. 178, 486 S.E.2d 205 (1997).

Right of Nonresident to Litigate Claim Not Barred Where It Arose. - The courts of this State are open to a nonresident plaintiff to enforce a claim on a cause of action that is not barred in the jurisdiction where such cause of action arose, where the debtor has not been a resident of this State for the statutory time necessary to bar the action. This section tolls the statute in such cases where neither the plaintiff nor the defendant is a resident of this State at the time of the institution of the action and never was, as well as where the obligation arose out of the State and the debtor has not resided in the State for a time sufficient to bar the action by the law of this State. Merchants & Planters Nat'l Bank v. Appleyard, 238 N.C. 145, 77 S.E.2d 783 (1953), decided prior to addition of proviso in 1955.

Action Based on Foreign Statute Which Itself Contains Limitation. - When an action is based on a foreign statute which creates a cause or right of action and the statute itself contains a limitation on the time within which the action may be brought, the life of the right of action is limited by that provision and not by local statutes of limitation. Rios v. Drennan, 209 F. Supp. 927 (E.D.N.C. 1962).

Claim Arising Out-of-State Against Nonresident. - This section has been construed to mean that if the cause of action arises in another state against an out-of-state defendant, then the statute of limitation does not begin to run until the nonresident defendant comes into this State so that he or she is subject to the personal jurisdiction of this State's courts. Cochrane v. Turner, 582 F. Supp. 971 (W.D.N.C. 1983).

§ 1-22. Death before limitation expires; action by or against personal representative or collector.

If a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced by his personal representative or collector after the expiration of that time, and within one year from his death. If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against his personal representative or collector after the expiration of that time; provided, the action is brought or notice of the claim upon which the action is based is presented to the personal representative or collector within the time specified for the presentation of claims in G.S. 28A-19-3. If the claim upon which the cause of action is based is filed with the personal representative or collector within the time above specified, and its validity is admitted in writing by him, it is not necessary to bring an action upon such claim to prevent the bar, but no action shall be brought against the personal representative or collector upon such claim after his final settlement.

History

(C.C.P., s. 43; 1881, c. 80; Code, s. 164; Rev., s. 367; C.S., s. 412; 1977, c. 446, s. 2.)

Cross References. - As to substitution of parties to action upon death of a party where the cause of action survives, see G.S. 1A-1, Rule 25.

As to survival of actions to and against personal representatives, see G.S. 28A-18-1.

CASE NOTES

I. IN GENERAL.

Section as Exception to General Rule. - This section is an exception to the general rule that when the statutes of limitation once begin to run nothing can stop them. Winslow v. Benton, 130 N.C. 58, 40 S.E. 840 (1902); Matthews v. Peterson, 150 N.C. 134, 63 S.E. 721 (1909); Hodge v. Perry, 255 N.C. 695, 122 S.E.2d 677 (1961).

This section is an enabling and not a disabling statute, and applies only in those cases where, but for its interposition, a claim would be barred. Benson v. Bennett, 112 N.C. 505, 17 S.E. 432 (1893); Redmond v. Pippen, 113 N.C. 90, 18 S.E. 50 (1893); Geitner v. Jones, 176 N.C. 542, 97 S.E. 494 (1918); Humphrey v. Stephens, 191 N.C. 101, 131 S.E. 383 (1926).

And Enlarges Time for Bringing Action. - This section is intended to enlarge and extend the time within which an action may be brought, and not to suspend the operation of the statute, which continues to run. Irvin v. Harris, 184 N.C. 547, 114 S.E. 818 (1922). See also, Coppersmith v. Wilson, 107 N.C. 31, 12 S.E. 77 (1890); Benson v. Bennett, 112 N.C. 505, 17 S.E. 432 (1893).

But this section has no application where the bar attached before death. Daniel v. Laughlin, 87 N.C. 433 (1882); Vaughan v. Hines, 87 N.C. 445 (1882); Hughes v. Boone, 114 N.C. 54, 19 S.E. 63 (1894); Grady v. Wilson, 115 N.C. 344, 20 S.E. 518 (1894); Parker v. Harden, 121 N.C. 57, 28 S.E. 20 (1897); Copeland v. Collins, 122 N.C. 619, 30 S.E. 315 (1898); Winslow v. Benton, 130 N.C. 58, 40 S.E. 840 (1902); Humphrey v. Stephens, 191 N.C. 101, 131 S.E. 383 (1926).

If a personal representative is appointed to administer an estate before the expiration of the statute of limitations, G.S. 1-22 allows the time limit within which to file an action against the estate to be extended according to G.S. 28A-19-3. Shaw v. Mintz, 151 N.C. App. 82, 564 S.E.2d 593 (2002).

G.S. 1-22 will allow the time limit within which to file an action against the estate to be extended according to G.S. 28A-19-3. Wright v. Smith, 151 N.C. App. 121, 564 S.E.2d 613 (2002), cert. denied, 356 N.C. 696, 579 S.E.2d 106 (2003).

This section makes a distinction between claims in favor of a decedent's estate and claims against a decedent's estate. Ingram v. Smith, 16 N.C. App. 147, 191 S.E.2d 390, cert. denied, 282 N.C. 304, 192 S.E.2d 195 (1972).

To What Limitations Section Is Applicable. - The section only applies to the limitations prescribed in the Code of Civil Procedure. Hall v. Gibbs, 87 N.C. 4 (1882).

Application to Wrongful Death Action. - This section is of no avail to a plaintiff in a wrongful death action where she does not qualify and file suit within that time limit. Johnson v. Wachovia Bank & Trust Co., 22 N.C. App. 8, 205 S.E.2d 353 (1974).

Application to Securities Action. - Since G.S. 78A-56 is a statute of limitations and not a statute of repose, in action seeking recession of purchase of securities the two-year statute of limitations provided for in G.S. 78A-56(f) was tolled by operation of this section, because plaintiffs brought their claim within the one year extension provided by this section. Walker v. Montclaire Hous. Partners, 736 F. Supp. 1358 (M.D.N.C. 1990).

Contract as to Time for Suit Not Suspended by Section. - A reasonable stipulation in a contract of carriage with a railroad company for an interstate shipment of goods as to the time wherein suit might be brought for loss or damage was a part of the contract between the parties, and being made without exception, was not suspended by this section. Thigpen v. East Carolina Ry., 184 N.C. 33, 113 S.E. 562 (1922).

As to former practice under which there was no extension of time to prevent the bar of the statutes from becoming complete as is provided in this section, see Hawkins v. Savage, 75 N.C. 133 (1876); Bruner v. Threadgill, 88 N.C. 361 (1883); Patterson v. Wadsworth, 89 N.C. 407 (1883).

Applied in Robertson v. Dunn, 87 N.C. 191 (1882); Simpson v. McConnell, 156 N.C. App. 424, 576 S.E.2d 419 (2003).

Cited in Syme v. Badger, 96 N.C. 197, 2 S.E. 61 (1887); Redmond v. Pippen, 113 N.C. 90, 18 S.E. 50 (1893); Harris v. Davenport, 132 N.C. 697, 44 S.E. 406 (1903); Geitner v. Jones, 176 N.C. 542, 97 S.E. 494 (1918); Irvin v. Harris, 182 N.C. 647, 109 S.E. 867 (1921); Gelder & Assocs. v. Huggins, 52 N.C. App. 336, 278 S.E.2d 295 (1981); Strong v. Johnson, 53 N.C. App. 54, 280 S.E.2d 37 (1981); Lassiter v. Faison, 111 N.C. App. 206, 432 S.E.2d 373 (1993).

II. CLAIMS IN FAVOR OF ESTATE.

Effect of this section, following death of judgment creditor, was to give one year's time from such death to the decedent's representative to bring an action, if otherwise it would have been barred before such year had expired. Benson v. Bennett, 112 N.C. 505, 17 S.E. 432 (1893).

Where there was more than one year after death of creditor before time for the bringing of suit expired, this section had no place. Hughes v. Boone, 114 N.C. 54, 19 S.E. 63 (1894).

Time of Administrator's Appointment Is Immaterial. - Actions upon claims in favor of an estate of a decedent must be brought within one year of his death, without regard to when administrator was appointed. Coppersmith v. Wilson, 107 N.C. 31, 12 S.E. 77 (1890).

Reason for Counting Time Period from Death of Decedent. - Time is counted from the death of the decedent, in respect to claims in favor of the estate, because the law does not encourage remission in those entitled to administrations. Coppersmith v. Wilson, 107 N.C. 31, 12 S.E. 77 (1890); Ingram v. Smith, 16 N.C. App. 147, 191 S.E.2d 390, cert. denied, 282 N.C. 304, 192 S.E.2d 195 (1972).

III. CLAIMS AGAINST ESTATE.

.

Editor's Note. - Some of the cases cited below were decided prior to the 1977 amendment to this section, which substituted the proviso in the second sentence for language therein limiting suit to a period within one year after the issuing of letters testamentary or of administration, provided the letters were issued within ten years of the death of decedent.

As to construction and application of former provisions of the second sentence of this section prior to its amendment in 1977, see Mauney v. Holmes, 87 N.C. 428 (1882); Dunlap v. Hendley, 92 N.C. 115 (1885); Smith v. Brown, 101 N.C. 347, 7 S.E. 890 (1888); Brittain v. Dickson, 104 N.C. 547, 10 S.E. 701 (1889); Coppersmith v. Wilson, 107 N.C. 31, 12 S.E. 77 (1890); Brawley v. Brawley, 109 N.C. 524, 14 S.E. 73 (1891); Benson v. Bennett, 112 N.C. 505, 17 S.E. 432 (1893); Burgwyn v. Daniel, 115 N.C. 115, 20 S.E. 462 (1894); Winslow v. Benton, 130 N.C. 58, 40 S.E. 840 (1902); Matthews v. Peterson, 150 N.C. 134, 63 S.E. 721 (1909); Fisher v. Ballard, 164 N.C. 326, 80 S.E. 239 (1913); Irvin v. Harris, 182 N.C. 656, 109 S.E. 871 (1921), modified on rehearing, 184 N.C. 547, 114 S.E. 818 (1922); Prentzas v. Prentzas, 260 N.C. 101, 131 S.E.2d 678 (1963).

A county's general claim against the estate of a recipient of old age assistance to recover for such assistance is governed by this section. Mecklenburg County v. Lee, 18 N.C. App. 239, 196 S.E.2d 814 (1973).

Action Not Barred. - Action filed on October 20, 2000, two days after qualification of deceased driver's personal representative, for personal injuries arising out of an automobile accident that occurred on June 27, 1997, was not barred by G.S. 1-52, where deceased died on November 7, 1997, at which time the three year limitations period had not yet expired, as under G.S. 28A-18-1 plaintiff's cause of action survived his death, and thus, pursuant to G.S. 1-22, plaintiff was permitted to commence a cause of action against deceased's personal representative, provided that either the action was brought within the time specified for the presentation of claims in G.S. 28A-19-3, or that notice of the claim upon which the action was based was presented to the personal representative within the time specified for the presentation of claims in G.S. 28A-19-3. The personal representative's failure to establish in the record that she complied with G.S. 28A-19-3(a) regarding general notice to creditors precluded her from relying upon the statute of limitations as a bar; moreover, under G.S. 28A-14-1(a), the absolute earliest "deadline" date which could have been specified by the personal representative in the general notice to creditors was January 18, 2001, three months from the day of the first publication or posting of such notice. Mabry v. Huneycutt, 149 N.C. App. 630, 562 S.E.2d 292 (2002).

IV. FILING AND ADMISSION OF CLAIM.

.

Editor's Note. - The cases cited below were decided prior to enactment of the 1977 amendment to the final sentence of this section, which substituted "its validity is admitted in writing by him" for "admitted by him."

Last Sentence of Section Not Retroactive. - The last sentence of this section (which was added in 1881) applied only to those claims that were filed at the time of the passage of the act and were not then barred. It could not apply to those barred when the act became effective. Whitehurst v. Dey, 90 N.C. 542 (1884).

Meaning of "Filed". - The term "filed" signifies that the claim is to be exhibited, for inspection, to the personal representative, for his admission or rejection. It is not required of the creditor to part with the possession of the evidence of his claim. Hinton v. Pritchard, 126 N.C. 8, 35 S.E. 127 (1900).

Notice to the executor for information is the prime purpose of the statute in requiring the claim to be filed, and seems to be all that is necessary for his purpose, until he is ready to make a final settlement. Hinton v. Pritchard, 126 N.C. 8, 35 S.E. 127 (1900).

Filing of Claim as Protection Against Running of Statute. - If a judgment creditor of a deceased judgment debtor wishes to protect himself against the running of the statute of limitations as against the debt, he must file his claim with the personal representative of the deceased. Williams v. Johnson, 230 N.C. 338, 53 S.E.2d 277 (1949).

Application to Heirs. - Since the amendment of 1881, the heir is as much barred by the filing of the claim within the prescribed time and its admission by the personal representative as he would be by the latter submitting to a judgment. Hall v. Gibbs, 87 N.C. 4 (1882); Woodlief v. Bragg, 108 N.C. 571, 13 S.E. 211 (1891).

What Constitutes Sufficient Filing. - It is a sufficient "filing" when the claim is presented within the proper time to the personal representative and he acknowledges the validity of the debt. The creditor has done his part when he has presented it to the administrator with sufficient certainty as to the nature and amount of the debt. Stonestreet v. Frost, 123 N.C. 640, 31 S.E. 836 (1898); Justice v. Gallert, 131 N.C. 393, 42 S.E. 850 (1902).

Silence as Admission. - Where a claim was presented in the form of a bill of particulars, and the representative refused an explicit admission or denial, plaintiff had the right to deem its acceptance without remark as arresting the running of the statute. Flemming v. Flemming, 85 N.C. 127 (1881).

Filing of Petition to Make Assets as Indicative of Admission. - Where personal representative did not deny the correctness of the claim filed with him in proper time, but filed his petition to make assets to pay it, this was strong proof that he admitted it. Woodlief v. Bragg, 108 N.C. 571, 13 S.E. 211 (1891).

Partial payment by the personal representative, without objection was an unequivocal act from which an admission of the justice of the claim could be inferred. Hinton v. Pritchard, 126 N.C. 8, 35 S.E. 127 (1900).

Where plaintiff never presents his claim or any proof of it, but simply announces its amount, without response from the representative, the running of the statute is not arrested under this section. Flemming v. Flemming, 85 N.C. 127 (1881).

Effect of Admission. - The admission of the validity of a claim by an administrator, where presented within proper time, dispenses with any formal proof thereof. Justice v. Gallert, 131 N.C. 393, 42 S.E. 850 (1902).

Claims which are not barred and are presented to the administrator and admitted by him pursuant to this section need not be put in suit to prevent the bar of the statute pending the administration, nor can the heirs plead the statute as to them. Turner v. Shuffler, 108 N.C. 642, 13 S.E. 243 (1891).

Where notes matured less than three years prior to the date of death of the maker, so that an action on the notes was not then barred by the three-year statute of limitation, the filing of claim and the admission of it, in accordance with this section, prevented the claim from being barred. Lister v. Lister, 222 N.C. 555, 24 S.E.2d 342 (1943).

Filing and Admission of Claim Held Sufficient. - Where an administrator, knowing that his appointment was at the instance and solicitation of judgment creditors so that they might make collection immediately upon appointment, with memorandum of the judgment in hand, investigated and ascertained that the judgment had not been paid, and thereafter instituted proceedings to sell the lands of intestate to pay the judgment, claim on the judgment was filed and admitted by the administrator within the meaning of this section. Rodman v. Stillman, 220 N.C. 361, 17 S.E.2d 336 (1941).

Mere notice to an executor of a claim against the decedent's estate, received without comment or approval by the executor, was not a filing of the claim within the meaning of this section, but where, after such notice, the executor carried the item as a debt on the books of the estate and reported it to the clerk as a debt owed by the estate, the executor's approval would be inferred, and the statute would not operate as a bar. Ashley Horne Corp. v. Creech, 205 N.C. 55, 169 S.E. 794 (1933).

Exhibition to the administrator by the sheriff, within one year of the date of administration, of an execution issued in favor of the county against the intestate, which the administrator admitted was correct but did not pay for want of assets, was a sufficient "filing" under this section, rendering unnecessary an action to prevent the bar of statute of limitations. Stonestreet v. Frost, 123 N.C. 640, 31 S.E. 836 (1898).


§ 1-23. Time of stay by injunction or prohibition.

When the commencement of an action is stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action.

History

(C.C.P., s. 46; Code, s. 167; Rev., s. 368; C.S., s. 413.)

CASE NOTES

This section affects only a litigant's right to prosecute an action in court as fixed by the statute, and does not as a rule operate to extend or prolong a time limit or a property right as determined by the contract of the parties. Gatewood v. Fry, 183 N.C. 415, 111 S.E. 712 (1922).

Effect of Irregularity in Granting Injunction. - Mere irregularity in the granting of an injunction will not render it a nullity, so as to prevent suspension of the statute of limitations under this section during the pendency of the injunction. Walton v. Pearson, 85 N.C. 34 (1881).

Evidence Held Sufficient to Overrule Motion to Nonsuit. - Where plaintiff showed that shortly after defendant's steamship collided with bridge, proceedings were instituted in federal district court, which ordered that all suits arising out of the collision be stayed, and that immediately after plaintiff's claim was dismissed in that court for want of jurisdiction it instituted the present action, plaintiff's evidence was sufficient to overrule motion to nonsuit on the ground of the bar of the statute of limitations. State Hwy. & Pub. Works Comm'n v. Diamond S.S. Transp. Corp., 226 N.C. 371, 38 S.E.2d 214 (1946).

Applied in First Citizens Bank & Trust Co. v. Martin, 44 N.C. App. 261, 261 S.E.2d 145 (1979).

Cited in High v. Broadnax, 271 N.C. 313, 156 S.E.2d 282 (1967).


§ 1-24. Time during controversy on probate of will or granting letters.

In reckoning time when pleaded as a bar to actions, that period shall not be counted which elapses during any controversy on the probate of a will or granting letters of administration, unless there is an administrator appointed during the pendency of the action, and it is provided that an action may be brought against him.

History

(C.C.P., s. 47; Code, s. 168; Rev., s. 369; C.S., s. 414.)

CASE NOTES

Applicability. - G.S. 1-24 had no application where a brother's claims were not related to the probate of the mother's will, but to the conveyance of real property by the sister while acting as the mother's attorney-in-fact. Honeycutt v. Weaver, 257 N.C. App. 599, 812 S.E.2d 859 (2018).

This section applies only where there is no administrator or collector during the contest. Hughes v. Boone, 114 N.C. 54, 19 S.E. 63 (1894).

This section has no application where an administrator has been appointed. Hargrave v. Gardner, 264 N.C. 117, 141 S.E.2d 36 (1965).

Persons Protected. - This section applies only to protect creditors, there being no one for them to sue. Stelges v. Simmons, 170 N.C. 42, 86 S.E. 801 (1915).

This section does not apply to the heirs at law or devisees to nullify the protection given everyone in adverse possession of realty for seven years under color of title, nor to invalidate a judgment rendered against the heir or devisee determining that the title to the property is in another. Stelges v. Simmons, 170 N.C. 42, 86 S.E. 801 (1915).

Cited in Frederick v. Williams, 103 N.C. 189, 9 S.E. 298 (1889); Ex parte Smith, 134 N.C. 495, 47 S.E. 16 (1904).


§ 1-25: Repealed by Session Laws 1967, c. 954, s. 4.

§ 1-26. New promise must be in writing.

No acknowledgment or promise is evidence of a new or continuing contract, from which the statutes of limitations run, unless it is contained in some writing signed by the party to be charged thereby; but this section does not alter the effect of any payment of principal or interest.

History

(C.C.P., s. 51; Code, s. 172; Rev., s. 371; C.S., s. 416.)

Cross References. - As to particular contracts requiring writing, see G.S. 22-1 et seq.

Legal Periodicals. - For comment on this section, see 13 N.C.L. Rev. 57 (1935).

For comment on application of statute of limitations to promise of grantee assuming mortgage or deed of trust, see 43 N.C.L. Rev. 966 (1965).

For article, "The Regulation of Contractual Change: A Guide to No Oral Modification Clauses for North Carolina Lawyers," see 81 N.C.L. Rev. 2239 (2003).

CASE NOTES

I. IN GENERAL.

The English Statute. - The original statute of limitation (21 Jas. I, ch. 16) had no provision as to new promises and acknowledgments. The court made the law on this subject and made it apply to all causes of action that rested on a promise. Royster v. Farrell, 115 N.C. 306, 20 S.E. 475 (1894).

This section is mandatory. Fleming v. Staton, 74 N.C. 203 (1876).

Effect upon Prior Law. - This section does not change the character or quality of the acknowledgment or new promise theretofore required to repel the bar of the statute of limitations in an action on contract, except that the new promise should be "in some writing signed by the party to be charged." Phillips v. Giles, 175 N.C. 409, 95 S.E. 772 (1918); Peoples Bank & Trust Co. v. Tar River Lumber Co., 221 N.C. 89, 19 S.E.2d 138 (1942).

The substituted statute after a fixed time bars the cause of action itself, and does not, as before, obstruct the remedy merely. McDonald v. Dickson, 87 N.C. 404 (1882).

Retroactive Effect. - This section has no application where the cause of action had accrued upon the new as well as the old cause. Faison v. Bowden, 74 N.C. 43 (1876).

This section is merely a rule of evidence enacted to prevent fraud and perjury. Royster v. Farrell, 115 N.C. 306, 20 S.E. 475 (1894).

A judgment is not a "contract" within the meaning of this section, because a cause of action on contract or tort loses its identity when merged in a judgment, and thereafter a new cause of action arises out of the judgment. McDonald v. Dickson, 87 N.C. 404 (1882).

Hence This Section Is Not Applicable to Judgments. - The terms of this section as to written acknowledgments, etc., are confined to actions on contracts and are not applicable to judgments. McDonald v. Dickson, 87 N.C. 404 (1882).

Authorization or Ratification by Surety. - If the original borrower makes a new promise to pay the debt in writing or actually makes a partial payment after his or her original promise to pay is broken but before the statute of limitations has run, then the statute begins to run anew from the date of this payment or acknowledgment as against a surety who authorizes or ratifies it. Fleet Real Estate Funding Corp. v. Blackwelder, 83 N.C. App. 27, 348 S.E.2d 611 (1986), cert. denied, 319 N.C. 104, 353 S.E.2d 109 (1987).

Cited in Taylor v. Hunt, 118 N.C. 168, 24 S.E. 359 (1896); Whitley's Elec. Serv., Inc. v. Sherrod, 293 N.C. 498, 238 S.E.2d 607 (1977); Whitley's Elec. Serv., Inc. v. Sherrod, 32 N.C. App. 338, 232 S.E.2d 223 (1977).

II. ACKNOWLEDGMENT OR NEW PROMISE.

Statute Not Tolled Without a Writing. - The running of the statute of limitations is not tolled by the promise of defendant to pay where there is neither allegation nor evidence of any writing as is required by this section to repel the bar of the statute of limitations in an action on a contract. Lattimore v. Powell, 15 N.C. App. 522, 190 S.E.2d 288 (1972).

A new promise to pay fixes a new date from which the statute of limitations runs, but such promise, to be binding, must be in writing as required by this section. Pickett v. Rigsbee, 252 N.C. 200, 113 S.E.2d 323 (1960); Norris v. Belcher, 86 N.C. App. 459, 358 S.E.2d 79 (1987).

A new promise to pay, if not in writing, cannot defeat the operation of the statute of limitation. Raby v. Stuman, 127 N.C. 463, 37 S.E. 476 (1900).

Absent Partial Payment. - The bar of the statute of limitations may be overcome by proof of a promise or acknowledgment, but the proof must be in writing, unless the new promise is one that the law implies from a part payment. Hill v. Hilliard & Co., 103 N.C. 34, 9 S.E. 639 (1889); Royster v. Farrell, 115 N.C. 306, 20 S.E. 475 (1894).

Oral Assertion of Claim Is Ineffectual. - The oral assertion of a claim to an administrator who remains silent, even if the silence should be construed an admission, is ineffectual because it is not in writing. Flemming v. Flemming, 85 N.C. 127 (1881).

As to exclusion of parol evidence that a new promise was made, see Christmas v. Haywood, 119 N.C. 130, 25 S.E. 861 (1896).

Elements Necessary for a Valid Promise. - The promise (1) must be in writing; (2) extend to the whole debt (but see Pope v. Andrews, 90 N.C. 401 (1884)); (3) must be to pay money and not something else of value; and (4) must be unconditional. Greenleaf v. Norfolk S.R.R., 91 N.C. 33 (1884); Edwin Bates & Co. v. E.B. Herren & Co., 95 N.C. 388 (1886); Taylor v. Miller, 113 N.C. 340, 18 S.E. 504 (1893); Wells v. Hill, 118 N.C. 900, 24 S.E. 771 (1896); Bryant v. Kellum, 209 N.C. 112, 182 S.E. 708 (1935).

In order to revive a debt which is barred by the statute of limitation, there must be an express unconditional promise to pay the same, in writing, or a written, definite and unqualified acknowledgment of the debt as a subsisting obligation, signed by the debtor, etc., and from which the law will imply a promise to pay. Phillips v. Giles, 175 N.C. 409, 95 S.E. 772 (1918).

The promise must be identical and must be between the original parties, by the same man; further, when the original contract is made with one person and the promise relied on to repel the statute is made with another, the plaintiff in the action, the cause of action is the new promise, and it must be declared on, and this new promise must be in writing. Fleming v. Staton, 74 N.C. 203 (1876); Pool v. Bledsoe, 85 N.C. 1 (1881).

The promise must be made to the creditor himself. Parker v. Shuford, 76 N.C. 219 (1877); Faison v. Bowden, 76 N.C. 425 (1877).

Or to an attorney or agent for the creditor. Kirby v. Mills, 78 N.C. 124 (1878); Hussey v. Kirkman, 95 N.C. 63 (1886).

The promise must be express. Cooper v. Jones, 128 N.C. 40, 38 S.E. 28 (1901).

And must be clear and positive. Hussey v. Kirkman, 95 N.C. 63 (1886).

And certain in its terms. Long v. Oxford, 104 N.C. 408, 10 S.E. 525 (1889).

Conditional Expressions of Willingness to Pay. - Where defendant sent to plaintiff supplier a letter which stated "we plan to pay" and "we expect to pay" the debt, these conditional expressions of defendant's willingness to pay the plaintiff were not sufficiently precise to amount to an unequivocal acknowledgement of the original amounts owed and were insufficient to repel the statute of limitations. American Multimedia, Inc. v. Freedom Distrib., Inc., 95 N.C. App. 750, 384 S.E.2d 32 (1989), cert. denied, 326 N.C. 46, 389 S.E.2d 84 (1990).

Promise Must Amount to New or Continuing Contract. - This section provides that the statute is only waived by acknowledgment or new promise, which amounts to "a new or continuing contract." George W. Helm Co. v. Griffin, 112 N.C. 356, 16 S.E. 1023 (1893).

Acknowledgment of Debt Is Insufficient. - The new promise must be distinct and specific, and a mere acknowledgment of the debt, though implying a promise to pay, is not sufficient. Faison v. Bowden, 76 N.C. 425 (1877); Riggs v. Roberts, 85 N.C. 151 (1881).

Intention to Renew Debt Must Be Manifest. - There must be such facts and circumstances as to show that the debtor recognized a present subsisting liability and manifested an intention to assume or renew the obligation. This means that the acknowledgment of a debt, which would be sufficient to repel the statute, must manifest an intention to renew the debt as strong and convincing as if there had been a direct promise to pay it. Simonton v. Clark, 65 N.C. 525 (1871); Wells v. Hill, 118 N.C. 900, 24 S.E. 771 (1896).

Letter to Creditor Referring to Principal Owed. - A letter to a creditor (plaintiff) written by a debtor (defendant), which did not state the amount owed but referred to the principal amount, constituted a new promise to pay the existing debt and tolled the statute of limitations for the plaintiff's claim pursuant to this section. Coe v. Highland Sch. Assocs. Ltd. Partnership, 125 N.C. App. 155, 479 S.E.2d 257 (1996).

Promise Must Be Made Within Statutory Limit. - The three-year statute of limitations bars a simple action for debt, and where a letter relied on as arresting the running of the statute is written more than three years before the commencement of the action it is ineffective. Smith v. Gordon, 204 N.C. 695, 169 S.E. 634 (1933).

When Promise Implied. - Where the debtor has, by a signed written instrument, unqualifiedly and definitely acknowledged the debt as his subsisting obligation, the law will imply a promise to pay it, and it is sufficient to repel the bar of the statute of limitations, unless there is something in the writing to repel such implication. Phillips v. Giles, 175 N.C. 409, 95 S.E. 772 (1918). See also, Smith v. Leeper, 32 N.C. 86 (1849); McRae v. Leary, 46 N.C. 91 (1853); Cecil v. Henderson, 121 N.C. 244, 28 S.E. 481 (1897).

Instances in Which Promise Not Implied. - An unaccepted offer to pay a debt by a conveyance of land is not such a recognition of subsisting liabilities as in law will imply a promise to pay. Wells v. Hill, 118 N.C. 900, 24 S.E. 771 (1896).

An unaccepted offer to discharge a bond by a conveyance of land will not be held to imply a promise to pay. Riggs v. Roberts, 85 N.C. 151 (1881).

A promissory note that was barred by the statute of limitations would not be revived by an offer to pay in Confederate currency or bank bills. Simonton v. Clark, 65 N.C. 525 (1871).

Section Inapplicable to Action Based on Failure of Equipment to Conform to Original Warranty. - The statute providing that a new promise must be in writing and signed by the party to be charged in order to start the running of the statute of limitations was inapplicable where plaintiff's action was based upon failure of equipment to conform with original warranty and not upon any new promise by seller. Styron v. Loman-Garrett Supply Co., 6 N.C. App. 675, 171 S.E.2d 41 (1969).

Acknowledgment or Promise Held Sufficient to Remove Bar of Statute. - A written acknowledgment, or a new promise, certain in its terms, or which can be made certain, is sufficient to repel the operations of the statute of limitations under this section. It follows that a mere vague declaration of an intention to pay an undefined amount, without reference to anything that could make it certain, would not be sufficient, but an admission that "the parties are yet to account, and are willing to account and pay the balance then ascertained" would be. Long v. Oxford, 104 N.C. 408, 10 S.E. 525 (1889).

The words "I propose to settle," written in answer to a letter demanding payment of a note barred by the lapse of time, amounted to an acknowledgment or new promise sufficient to take the case out of the operation of the statute of limitations. Taylor v. Miller, 113 N.C. 340, 18 S.E. 504 (1893).

Where a suit had already been commenced to recover an amount alleged to be due upon account, and defendant set up the statutory bar as a defense, but wrote a letter to plaintiff's attorney stating that, if he would take $500.00 in satisfaction, judgment might go against him at court, the letter was an admission and assumption of the debt in the specified amount of $500.00, and operated to remove the bar to recovery. Pope v. Andrews, 90 N.C. 401 (1884). But see, Wells v. Hill, 118 N.C. 900, 24 S.E. 771 (1896).

A paper-writing signed by a parent, certifying that she owed her daughter a sum of money, in a stated amount, for moneys she had borrowed from her at various times, and stating that the daughter was to have a certain sum of money from her estate, giving her reasons, was sufficiently definite to imply a promise to pay the amount of the debt and to repel the bar of the statute of limitations. Phillips v. Giles, 175 N.C. 409, 95 S.E. 772 (1918).

A new note embracing an old indebtedness of the maker is a sufficient writing signed by the parties to be charged to bring the old indebtedness within the operation of this section. Irvin v. Harris, 182 N.C. 647, 109 S.E. 867, aff'd, 182 N.C. 656, 109 S.E. 871 (1921), modified on rehearing, 184 N.C. 547, 114 S.E. 818 (1922).

Acknowledgment or Promise Held Insufficient. - Where a debtor wrote to his creditors declining proffered credit because he was unable to pay what he already owed them, which was barred by the statute, but expressing his confidence in his ability to pay whatever he might contract for in the future, the bar of the statute was not removed. George W. Helm Co. v. Griffin, 112 N.C. 356, 16 S.E. 1023 (1893).

A writing stating "I am going to pay it as soon as I can" was conditioned upon ability to pay and was therefore insufficient. Cooper v. Jones, 128 N.C. 40, 38 S.E. 28 (1901).

In order for a letter signed by the debtor to remove the bar of the statute of limitations it must contain an express, unconditional promise to pay or a definite, unqualified acknowledgment of the debt as a subsisting obligation; and a letter acknowledging the debt at the time defendant left plaintiff's city, but claiming that it had been canceled by the creditor's action in selling the debtor's goods of a value greatly in excess of the debt, was not such an acknowledgment of a subsisting obligation as would repel the statutory bar. Smith v. Gordon, 204 N.C. 695, 169 S.E. 634 (1933).

Client was entitled to summary judgment based on the statute of limitations under G.S. 1-52(1) because a business consultant failed to show that the client in its e-mails to the consultant manifested a definite and unqualified intention to pay a contractual debt under G.S. 1-26 so that the time for the consultant to collect the contractual debt was extended by the e-mails. Andrus v. IQMax, Inc., 190 N.C. App. 426, 660 S.E.2d 107 (2008).

As to former law, see Hughes v. Edwards, 22 U.S. (9 Wheat.) 489, 6 L. Ed. 142 (1824); McBride v. Gray, 44 N.C. 420 (1853); Brown v. Becknall, 58 N.C. 423 (1860); Faison v. Bowden, 72 N.C. 405 (1875); Ray v. Pearce, 84 N.C. 485 (1881); Riggs v. Roberts, 85 N.C. 151 (1881); Simmons v. Ballard, 102 N.C. 105, 9 S.E. 495 (1889).

III. EFFECT OF PARTIAL PAYMENT.

.

History. - It should be observed that the effect of partial payment stopping the statute is not of statutory origin. It was not in the English statute of James I and 9 Geo. IV did nothing more than recognize the common-law right. Thus it originated with the courts and its application depends upon the reasoning in such decisions. This is equally true in North Carolina for this section merely recognizes the right, leaving the application of the principles to the courts as has always been the case. See Battle v. Battle, 116 N.C. 161, 21 S.E. 177 (1895).

Thus the effect of this section is to leave the law as it was prior to the adoption of the Code of Civil Procedure as regards the effect of a partial payment in removing the bar of the statute of limitations. See State Nat'l Bank v. Harris, 96 N.C. 118, 1 S.E. 459 (1887); Kilpatrick v. Kilpatrick, 187 N.C. 520, 122 S.E. 377 (1924).

The principle that making a payment on a note repels the statute is not altered by the provisions of this section, for it expressly provides that "this section does not alter the effect of any payment of principal or interest." The decisions treating of this provision hold that the effect of this clause is to leave the law as it was prior to the adoption of this section as regards the effect of a partial payment in removing the bar of the statute of limitations. Smith v. Davis, 228 N.C. 172, 45 S.E.2d 51, 174 A.L.R. 643 (1947).

This section dispenses with a writing where partial payment is made, because the payment is in effect a written promise. McDonald v. Dickson, 87 N.C. 404 (1882).

But Debtor Must Intend Thereby to Acknowledge Debt. - The general principle on which part payment takes a case out of the statute is that the party paying intended by it to acknowledge and admit the greater debt to be due. If it was not in the mind of the debtor to do this, then the statute, having begun to run, will not be stopped by reason of such payment. Cashmar-King Supply Co. v. Dowd, 146 N.C. 191, 59 S.E. 685 (1907).

Partial payment starts the statute running anew only when it is made under such circumstances as will warrant the clear inference that the debtor recognizes the debt as existing and his willingness, or at least his obligation, to pay the balance. Battle v. Battle, 116 N.C. 161, 21 S.E. 177 (1895). See also, Lester Piano Co. v. Loven, 207 N.C. 96, 176 S.E. 290 (1934); Norris v. Belcher, 86 N.C. App. 459, 358 S.E.2d 79 (1987).

Payment made in contemplation of an agreed compromise will not repel the bar of the statute of limitations as to the balance of the debt. Cashmar-King Supply Co. v. Dowd, 146 N.C. 191, 59 S.E. 685 (1907).

Partial payment voluntarily made on judgment does not remove statutory bar. McDonald v. Dickson, 87 N.C. 404 (1882).

Application of Existing Liability to Debt. - The fact that the maker of a note had a claim against the holder, which the holder endorsed as a credit on the note without the assent of the maker, would not be such a partial payment as would rebut the statute of limitations, but an agreement to apply one existing liability to another would be such a partial payment as would stop the operation of the statute, even though the endorsement was never actually made on the note. State Nat'l Bank v. Harris, 96 N.C. 118, 1 S.E. 459 (1887).

An account of transactions between two persons, to be mutual, when kept by only one of them, must be with the knowledge and concurrence of the other, so as to make a credit given to such other repel the bar of the statute of limitations. Cashmar-King Supply Co. v. Dowd, 146 N.C. 191, 59 S.E. 685 (1907).

Where an assignment for the benefit of creditors conferred no power on the trustee, as agent of the debtor, to do any act to waive the statute or to express a willingness or intention to pay the debt after it became otherwise barred, a partial payment made by the trustee on a note of the debtor would not arrest the running or remove the bar of the statute of limitations. Battle v. Battle, 116 N.C. 161, 21 S.E. 177 (1895).

Burden of Proving Payment. - The burden is upon the plaintiff to show that a partial payment was made at such a time as to save the debt from the operation of the statute. Riggs v. Roberts, 85 N.C. 151 (1881).

Instruction Held Erroneous. - Where the running of the statute of limitations would have otherwise barred an action upon an account, and there was evidence tending to show that a credit thereon was agreed to by the creditor and debtor within the three-year period, the effect of this credit to repel the bar related to the time of the agreement made and effected, and an instruction that made it depend upon the time of the debt incurred for which the credit was given was reversible error to the plaintiff's prejudice. Kilpatrick v. Kilpatrick, 187 N.C. 520, 122 S.E. 377 (1924).

As to time for which statute starts anew, see Riggs v. Roberts, 85 N.C. 151 (1881); State Nat'l Bank v. Harris, 96 N.C. 118, 1 S.E. 459 (1887); Battle v. Battle, 116 N.C. 161, 21 S.E. 177 (1895); Cashmar-King Supply Co. v. Dowd, 146 N.C. 191, 59 S.E. 685 (1907); Kilpatrick v. Kilpatrick, 187 N.C. 520, 122 S.E. 377 (1924).

IV. EFFECT OF REQUEST NOT TO SUE.

.

Plea of Limitations Precluded After Delay Caused by Debtor's Request and Promise. - Where delay in bringing suit is caused by a request of defendant or his attorney and his promise to pay the debt and not to avail himself of the plea of the statute, he will not be allowed to plead the statute, as it would be against equity and good conscience. Joyner v. Massey, 97 N.C. 148, 1 S.E. 702 (1887). See also, Barcroft & Co. v. Roberts & Co., 91 N.C. 363 (1884), aff'd on rehearing, 92 N.C. 249 (1885).

Notwithstanding this section, when a creditor has delayed action at the request of the debtor, under his promise, express or implied, to pay the debt and not to plead the statute of limitations, the courts, in the exercise of their equitable jurisdiction, will not permit the debtor to plead the lapse of time, and the creditor may bring his action within the statutory time after such promise and request for delay even though they were not in writing. Cecil v. Henderson, 121 N.C. 244, 28 S.E. 481 (1897).

If plaintiff was prevented from bringing his action during the statutory period by such conduct on the part of the defendant as makes it inequitable to him to plead the statute, or by reason of any agreement not to do so, he will not be permitted to defeat plaintiff's action by interposing the plea. Tomlinson v. Bennett, 145 N.C. 279, 59 S.E. 37 (1907); State ex rel. Oliver v. United States Fid. & Guar. Co., 176 N.C. 598, 97 S.E. 490 (1918).

On Grounds of Equitable Estoppel. - In giving effect to requests not to sue and promises not to plead the statute, the courts proceed upon the idea of an equitable estoppel, holding that it would be against good conscience and encourage fraud to permit the debtor to repudiate them when by his contract he has lulled the creditor into a feeling of security and has induced him to delay bringing action. Daniel v. Board of Comm'rs, 74 N.C. 494 (1876); Haymore v. Commissioners of Yadkin, 85 N.C. 268 (1881).

Request Without Promise Not to Plead Insufficient. - It is essential not only that there shall be a new promise and a request for delay, but there must be a promise not to plead the statute if delay is given. Hill v. Hilliard & Co., 103 N.C. 34, 9 S.E. 639 (1889); Cecil v. Henderson, 121 N.C. 244, 28 S.E. 481 (1897).

A request not to sue will not stay the statute of limitation, but it must be an agreement not to plead it. Raby v. Stuman, 127 N.C. 463, 37 S.E. 476 (1900).

But Request and Promise Need Not Be in Writing. - The request not to sue and promises not to plead the statute of limitations need not be in writing. Cecil v. Henderson, 121 N.C. 244, 28 S.E. 481 (1897); State v. United States Fid. & Guar. Co., 176 N.C. 598, 97 S.E. 490 (1918).

Running of Statute Not Arrested. - A simple admission by executor of the correctness of a claim against testator's estate, and a verbal promise to pay same out of the assets, prior to the 1881 amendment of G.S. 1-22, would not arrest the running of the statute of limitations, where there was no proof that the creditor refrained from suing at the request of the executor or that there was any agreement for indulgence. Whitehurst v. Dey, 90 N.C. 542 (1884).


§ 1-27. Act, admission or acknowledgment by party to obligation, co-obligor or guarantor.

  1. After a cause of action has accrued on any obligation on which there is more than one obligor, any act, admission, or acknowledgment by any party to such obligation or guarantor thereof, which removes the bar of the statute of limitations or causes the statute to begin running anew, has such effect only as to the party doing such act or making such admission or acknowledgment, and shall not renew, extend or in any manner impose liability of any kind against other parties to such obligation who have not authorized or ratified the same.
  2. Nothing in this section shall be construed as applying to or affecting rights or obligations of partnerships or individual members thereof, due to acts, admissions or acknowledgments of any one partner but rights as between partners shall be governed by G.S. 59-39.1.

History

(C.C.P., s. 50; Code, s. 171; Rev., s. 372; C.S., s. 417; 1953, c. 1076, s. 1.)

Legal Periodicals. - For comment on 1953 amendment, see 31 N.C.L. Rev. 397 (1953).

For comment on application of statute of limitations to promise of grantee assuming mortgage or deed of trust, see 43 N.C.L. Rev. 966 (1965).

CASE NOTES

Effect of Partial Payment on Promissory Note by One Defendant. - In an action to recover the balance due on a promissory note, a payment on the note by one defendant did not fix the date of payment as a new date from which the statute of limitations began to run against the second defendant unless such partial payment was agreed to, authorized or ratified by the second defendant. First Citizens Bank & Trust Co. v. Martin, 44 N.C. App. 261, 261 S.E.2d 145 (1979), cert. denied, 299 N.C. 741, 267 S.E.2d 661 (1980).

Authorization or Ratification by Surety. - If the original borrower makes a new promise to pay the debt in writing or actually makes a partial payment after his or her original promise to pay is broken but before the statute of limitations has run, then the statute begins to run anew from the date of this payment or acknowledgment as against a surety who authorizes or ratifies it. Fleet Real Estate Funding Corp. v. Blackwelder, 83 N.C. App. 27, 348 S.E.2d 611 (1986), cert. denied, 319 N.C. 104, 353 S.E.2d 109 (1987).

Cited in Wells v. Barefoot, 55 N.C. App. 562, 286 S.E.2d 625 (1982).


§ 1-28. Undisclosed partner.

The statutes of limitations apply to a civil action brought against an undisclosed partner only from the time the partnership became known to the plaintiff.

History

(1893, c. 151; Rev., s. 373; C.S., s. 418.)

CASE NOTES

Cited in Pamlico Properties IV v. Seg Anstalt Co., 89 N.C. App. 323, 365 S.E.2d 686 (1988).


§ 1-29. Cotenants.

If in actions by tenants in common or joint tenants of personal property, to recover the same, or damages for its detention or injury, any of them are barred of their recovery by limitation of time, the rights of the others are not affected thereby, but they may recover according to their right and interest, notwithstanding such bar.

History

(C.C.P., s. 52; Code, s. 173; Rev., s. 374; C.S., s. 419; 1921, c. 106.)

CASE NOTES

This section changes the rule in regard to personalty. It does not affect the law as to real property. Cameron v. Hicks, 141 N.C. 21, 53 S.E. 728 (1906).

As to elements of tenancy in common, see Powell v. Malone, 22 F. Supp. 300 (M.D.N.C. 1938).

§ 1-30. Applicable to actions by State.

The limitations prescribed by law apply to civil actions brought in the name of the State, or for its benefit, in the same manner as to actions by or for the benefit of private parties.

History

(C.C.P., s. 38; Code, s. 159; Rev., s. 375; C.S., s. 420.)

Legal Periodicals. - For note, "Reviving a Double Standard in Statutes of Limitations and Repose: Rowan County Board of Education v. United States Gypsum Company," see 71 N.C.L. Rev. 879 (1993).

For article, "A Morass of Confusion and Inconsistency: The Application of the Doctrine of Nullum Tempus Occurrit Regi" in North Carolina, see 28 Campbell L. Rev. 251 (2006).

CASE NOTES

Effect of Section on Common
Law. - This section abrogated the common-law maxim "nullum tempus occurrit regi" protecting public property from the negligence of public officers. Furman v. Timberlake, 93 N.C. 66 (1885).

The maxim "nullum tempus occurrit regi" no longer obtains in this State, even in the case of collecting taxes, unless the statute applicable to or controlling the subject provides otherwise. City of Wilmington v. Cronly, 122 N.C. 388, 30 S.E. 9 (1898); Threadgill v. Town v. Wadesboro, 170 N.C. 641, 87 S.E. 521 (1916); Guilford County v. Hampton, 224 N.C. 817, 32 S.E.2d 606 (1945).

Nullum tempus occurrit regi is not totally abrogated in North Carolina; the ancient maxim, and its historic public policy of preserving the public rights, revenues and property, still has a limited place in the modern age. Rowan County Bd. of Educ. v. United States Gypsum Co., 87 N.C. App. 106, 359 S.E.2d 814, cert. denied, 321 N.C. 298, 362 S.E.2d 782 (1987).

Nullum tempus survives in North Carolina and applies to exempt the State and its political subdivisions from the running of time limitations unless the pertinent statute expressly includes the State. The General Assembly has acquiesced in this interpretation of this section. Rowan County Bd. of Educ. v. United States Gypsum Co., 332 N.C. 1, 418 S.E.2d 648 (1992).

Applicability of Limitations to State Is Legislative Matter. - Whether there ought to be a statute of limitations applicable to suits by the State is a matter for the legislature, not the courts. State v. West, 293 N.C. 18, 235 S.E.2d 150 (1977).

Determining Factors as to Whether Limitations Apply. - Nullum tempus does not apply in every case in which the State is a party. If the function at issue is governmental, time limitations do not run against the State or its subdivisions unless the statute at issue expressly includes the State. If the function is proprietary, time limitations do run against the State and its subdivisions unless the statute at issue expressly excludes the State. Rowan County Bd. of Educ. v. United States Gypsum Co., 332 N.C. 1, 418 S.E.2d 648 (1992).

When the State or one of its political arms acts in a governmental fashion, it does not act in the same manner as a private party. Thus, time limitations do not run against the State unless the statute at issue expressly includes the State. Rowan County Bd. of Educ. v. United States Gypsum Co., 332 N.C. 1, 418 S.E.2d 648 (1992).

Proprietary Activity. - Pecuniary activity or activity of a type historically performed by private individuals, is proprietary in nature, therefore, the limitations statute applies. Rowan County Bd. of Educ. v. United States Gypsum Co., 332 N.C. 1, 418 S.E.2d 648 (1992).

When Statute Runs Against
State. - Notwithstanding the inclusive provisions of this section, it has been uniformly held that no statute of limitations runs against the State, unless it is expressly provided therein. City of Raleigh v. Mechanics & Farmers Bank, 223 N.C. 286, 26 S.E.2d 573 (1943); State v. West, 293 N.C. 18, 235 S.E.2d 150 (1977).

State Action as Governmental Function. - Given that the State (1) has undertaken the responsibility to provide free public schools, (2) has delegated day-to-day administration and operation of those schools to counties and local school boards, including the power to bring suit to recover money or property "which may be due to or should be applied to the support and maintenance of the schools" and (3) has retained the duty of providing those local entities with considerable operating funds from state revenues, the county board of education was acting as an arm of the State in pursuing the governmental function of constructing and maintaining its schools. Rowan County Bd. of Educ. v. United States Gypsum Co., 332 N.C. 1, 418 S.E.2d 648 (1992).

The county board of education was acting in a governmental capacity when it brought suit to recover lost tax money expended in the construction of public schools - an activity incidental to and part of the State's constitutional duty to provide public education - and to abate a potential health hazard to students, teachers, staff, administrators, parents, and others using school buildings. Rowan County Bd. of Educ. v. United States Gypsum Co., 332 N.C. 1, 418 S.E.2d 648 (1992).

Construction and maintenance of local public schools by a local school board is a governmental function. Rowan County Bd. of Educ. v. United States Gypsum Co., 332 N.C. 1, 418 S.E.2d 648 (1992).

Limitations Statute Held Inapplicable. - Three-year statute of limitations pleaded by the defendant was not applicable in an action by the State to recover certain documents, namely indictments issued in 1967 and 1968, since nothing in the record indicated when the documents were taken from the possession of the State and hence when the cause of action arose, and since the statute pleaded was not made expressly applicable to the State. State v. West, 293 N.C. 18, 235 S.E.2d 150 (1977).

Three-year statute of limitations did not apply to an action by a municipality to enforce assessment liens for public improvements, since such statute did not apply to actions brought by the State or its political subdivisions in the capacity of its sovereignty. City of Charlotte v. Kavanaugh, 221 N.C. 259, 20 S.E.2d 97 (1942).

Where act authorizing collection of tax arrearages did not prescribe any limitation, the 10-year statute of limitations did not apply, and the unpaid taxes for any year could be recovered. City of Wilmington v. Cronly, 122 N.C. 388, 30 S.E. 9 (1898).

County school board's action to recover lost tax dollars expended in removing asbestos from school property was a governmental function exercised in pursuit of a sovereign purpose for the public good on behalf of the State, and the action was not barred by the statute of limitations. Rowan County Bd. of Educ. v. United States Gypsum Co., 87 N.C. App. 106, 359 S.E.2d 814, cert. denied, 321 N.C. 298, 362 S.E.2d 782 (1987).

Statutes of Repose. - Despite the fact that statutes of repose differ in some respects from statutes of limitation, they are still time limitations and therefore still subject to the doctrine that time does not run against the sovereign. Rowan County Bd. of Educ. v. United States Gypsum Co., 332 N.C. 1, 418 S.E.2d 648 (1992).

Cited in City of Reidsville v. Burton, 269 N.C. 206, 152 S.E.2d 147 (1967); State ex rel. State Art Museum Bldg. Comm'n v. Travelers Indem. Co., 111 N.C. App. 330, 432 S.E.2d 419 (1993); State HHS v. Thompkins, 205 N.C. App. 285, 695 S.E.2d 133 (2010).

Opinions of Attorney General

Statutes of Limitations Are Not Applicable Against the State in Escheats. - See opinion of Attorney General to Mr. Edwin Gill, State Treasurer, 42 N.C.A.G. 49 (1972).

§ 1-31. Action upon a mutual, open and current account.

In an action brought to recover a balance due upon a mutual, open and current account, where there have been reciprocal demands between the parties, the cause of action accrues from the time of the latest item proved in the account on either side.

History

(C.C.P., s. 39; Code, s. 160; Rev., s. 376; C.S., s. 421; 1951, c. 837, s. 1.)

Cross References. - As to book accounts as evidence of last settlement between parties in actions for less than $60.00, see G.S. 8-42.

CASE NOTES

"Mutual Account" Defined. - An account may be "mutual" if there are reciprocal dealings so that each party extends credit to the other and the account is allowed to run with a view to an ultimate adjustment of the balance. Whitley's Elec. Serv., Inc. v. Sherrod, 293 N.C. 498, 238 S.E.2d 607 (1977).

"Open Account" Defined. - An ordinary open account results where the parties intend that the individual transactions are to be considered as a connected series rather than as independent of each other, a balance is kept by adjustment of debits and credits, and further dealings between the parties are contemplated. Whitley's Elec. Serv., Inc. v. Sherrod, 293 N.C. 498, 238 S.E.2d 607 (1977).

"Current Account" Defined. - An account is "running" or "current" where it continues with no time limitations fixed by express or implied agreement. Whitley's Elec. Serv., Inc. v. Sherrod, 293 N.C. 498, 238 S.E.2d 607 (1977).

What Accounts Contemplated by Section. - The mere existence of disconnected and opposing demands between two parties will not take a case out of the statute of limitations. There must be mutual running accounts, having reference to each other, between the parties, for an item within time to have that effect. Green v. Caldcleugh, 18 N.C. 320 (1835).

In order that one item being in date shall have the effect of bringing the whole account within date, it must appear that there were mutual accounts between the parties, or an account of mutual dealings kept by one party with the knowledge and concurrence of the other. Hussey v. Burgwyn, 51 N.C. 385 (1859).

Extension of Credit Must Be Reciprocal. - A mutual account must be reciprocal as to the credit extended, so as to imply a promise to pay the balance due, upon whichever side it may fall; and an extension of credit upon the one side alone falls neither within the intent and meaning of case law nor the statute applicable. Hollingsworth v. Allen, 176 N.C. 629, 97 S.E. 625 (1918).

Mutuality of accounts may be the result of direct agreement or may be inferred from the dealings of the parties; if established, it renders unavailable the defense of the statute of limitations to both parties. Stancell v. Burgwyn, 124 N.C. 69, 32 S.E. 378 (1899).

When Mutuality May Be Inferred. - A mutual account may be inferred where each party keeps a running account of the debits and credits, or where one, with the knowledge of the other keeps it. Green v. Caldcleugh, 18 N.C. 320 (1835); Hussey v. Burgwyn, 51 N.C. 385 (1859); Robertson v. Pickerell, 77 N.C. 302 (1877); E. Mauney & Son v. Coit, 86 N.C. 464 (1882); Stokes v. Taylor, 104 N.C. 394, 10 S.E. 566 (1889).

Section Inapplicable to Credit Account. - The purchase of merchandise on credit, where the purchaser pays a certain sum in cash on the account each fall and the balance is carried forward into the next year and the next year's purchases are added thereto, is not a mutual, open and current account within the purview of this section, but is an account current. Richlands Supply Co. v. Banks, 205 N.C. 343, 171 S.E. 358 (1933).

This section does not apply to an ordinary store account, though open and continued, where the credit is all on one side and the only items of discharge consist in payments on account. Brock v. Franck, 194 N.C. 346, 139 S.E. 696 (1927).

An ordinary store account or any other account (though open and continued) where the credit is all on one side and the payments on account are on the other is not a "mutual, open and current account" under this section. Whitley's Elec. Serv., Inc. v. Sherrod, 32 N.C. App. 338, 232 S.E.2d 223, rev'd on other grounds, 293 N.C. 498, 238 S.E.2d 607 (1977).

An indefinite promise to pay intermittently from time to time for services rendered by one party to another is not a mutual, open and current account with reciprocal demands between the parties within the purview of this section. Phillips v. Penland, 196 N.C. 425, 147 S.E. 731 (1929).

Draft Not Referring to Account. - The bar of the statute of limitations was not repealed by the transmission of a draft by the debtor and its receipt by the creditor within the three years, where the former made no allusion to or recognition of the account or any debt whatever. Hussey v. Burgwyn, 51 N.C. 385 (1859).

When Statute Runs on Mutual Accounts. - Where there is a running account, all on one side, the statute of limitations begins to run on each item from its date, but where there are mutual accounts, the statute begins to run only from the last dealing between the parties. Robertson v. Pickerell, 77 N.C. 302 (1877).

Section Inapplicable to Oral Agreement for Rent. - Even if the cause of action to enforce an oral agreement for rent was not barred by the statute of frauds, this section did not apply to it, because the agreement was not a mutual account. Simon v. Mock, 75 N.C. App. 564, 331 S.E.2d 300 (1985).

Action for Services Rendered to Decedent. - Where plaintiff instituted action against administratrix of deceased to recover for services rendered deceased, and it appeared that plaintiff alone kept the account of charges for such services and that he entered thereon from time to time credits for rent for decedent's land, the facts were insufficient to establish mutual, open and current accounts, and the statute of limitations began to run against plaintiff's claims for the date of each item. Tew v. Hinson, 215 N.C. 456, 2 S.E.2d 376 (1939).

In an action against decedent's administrator to recover for services rendered to decedent under an agreement that he would pay for services to be irregularly rendered from time to time as needed, without a definite time fixed for payment but under a general promise to pay for them, a payment made by decedent in 1925, intended by him to be made upon the debt, would have the effect of reviving the claim against the statute of limitations only for the three years next preceding his death in 1926, subject to the credit of the payment so made. Phillips v. Penland, 196 N.C. 425, 147 S.E. 731 (1929).

Conflicting Evidence for Jury. - Conflicting evidence as to whether last item entered was proper in mutual, open and current account was for the jury. Hammond v. Williams, 215 N.C. 657, 3 S.E.2d 437 (1939).

Directed Verdict Held Error. - Where there was conflicting evidence as to whether item sued on was to be related to other items upon which defendant relied, it was reversible error for the judge to direct a verdict thereon if the jury believed the evidence. McKinnie Bros. Co. v. Wester, 188 N.C. 514, 125 S.E. 1 (1924).

Effect of Part Payment. - While there is language in some of the decisions suggesting that a part payment on a current account revives only those items that accrued within three years preceding the payment, the Supreme Court has not so held in any case where (1) a current account was established, (2) the debtor made a partial payment, and (3) there were circumstances showing that in making the payment the debtor intended to acknowledge the entire account and thereby impliedly promised to pay the balance due. Whitley's Elec. Serv., Inc. v. Sherrod, 293 N.C. 498, 238 S.E.2d 607 (1977).

A part payment operates to toll the statute if made under such circumstances as will warrant the clear inference that the debtor in making the payment recognized his debt as then existing and acknowledged his willingness, or at least his obligation, to pay the balance. Whitley's Elec. Serv., Inc. v. Sherrod, 293 N.C. 498, 238 S.E.2d 607 (1977).

Where plaintiff sues on a current account, a part payment which constitutes an acknowledgment begins the statute running anew as to the entire amount that is acknowledged and not merely as to those items which accrued within three years of the payment. Whitley's Elec. Serv., Inc. v. Sherrod, 293 N.C. 498, 238 S.E.2d 607 (1977).

Acknowledgment of Obligation. - Where suit is brought more than three years after claim arises on an account or other contractual debt, the bar of the statute of limitations may be avoided if the debtor has acknowledged his obligation within three years prior to the date the action is filed. Whitley's Elec. Serv., Inc. v. Sherrod, 293 N.C. 498, 238 S.E.2d 607 (1977).


§ 1-32. Not applicable to bank bills.

The limitations prescribed by law do not affect actions to enforce the payment of bills, notes or other evidences of debt, issued or put in circulation as money by banking corporations incorporated under the laws of this State.

History

(C.C.P., s. 53; 1874-5, c. 170; Code, s. 174; Rev., s. 377; C.S., s. 422.)

§ 1-33. Actions against bank directors or stockholders.

The limitations prescribed by law do not affect actions against directors or stockholders of any banking association incorporated under the laws of this State, to recover a penalty or forfeiture imposed, or to enforce a liability created by law; but such actions must be brought within three years after the discovery by the aggrieved party of the facts upon which the penalty or forfeiture attached, or the liability was created.

History

(C.C.P., s. 54; Code, s. 175; Rev., s. 378; C.S., s. 423.)

CASE NOTES

Cited in Houston v. Thornton, 122 N.C. 365, 29 S.E. 827 (1898).


§ 1-34. Aliens in time of war.

When a person is an alien subject, or a citizen of a country at war with the United States, the time of the continuance of the war is not a part of the period limited for the commencement of the action.

History

(C.C.P., s. 44; Code, s. 165; Rev., s. 379; C.S., s. 424.)

CASE NOTES

As to the right of alien enemy to sue in the courts of this State, see Krachanake v. Acme Mfg. Co., 175 N.C. 435, 95 S.E. 851 (1918).


ARTICLE 4. Limitations, Real Property.

Sec.

§ 1-35. Title against State.

The State will not sue any person for, or in respect of, any real property, or the issue or profits thereof, by reason of the right or title of the State to the same -

  1. When the person in possession thereof, or those under whom he claims, has been in the adverse possession thereof for thirty years, this possession having been ascertained and identified under known and visible lines or boundaries; which shall give a title in fee to the possessor.
  2. When the person in possession thereof, or those under whom he claims, has been in possession under color of title for twenty-one years, this possession having been ascertained and identified under known and visible lines or boundaries.

History

(R.C., c. 65, s. 2; C.C.P., s. 18; Code, s. 139; Rev., s. 380; C.S., s. 425.)

Cross References. - As to validity of possession described in this section against claimants under the State, see G.S. 1-37.

Legal Periodicals. - For article discussing the doctrine of color of title in North Carolina, see 13 N.C. Cent. L.J. 123 (1982).

For comment, "Taking Without Compensation: Measure of Permanent Damages Modified by Application of Limitation of Actions for Trespass," see 20 Wake Forest L. Rev. 671 (1984).

For article, "The Battle to Preserve North Carolina's Estuarine Marshes: The 1985 Legislations, Private Claims to Estuarine Marshes, Denial of Permits to Fill, and the Public Trust," see 64 N.C.L. Rev. 565 (1986).

For note, "Walls v. Grohman: Adverse Possession in Mistaken Boundary Cases," see 64 N.C.L. Rev. 1496 (1986).

For article, "The Law Is What It Is, But Is It Equitable? The Law of Encroachments Where the Innocent, Negligent, and Willful Are Treated the Same," see 39 Campbell L. Rev. 287 (2017).

CASE NOTES

History. - Before the Code of Civil Procedure, to prevent the uncertainty of titles, the courts of this State had adopted the arbitrary rule that from the adverse possession of land for 30 years a grant from the State should be presumed, a rule so arbitrary that a jury was not permitted to find the fact against the presumption; nor was it necessary that the party in adverse possession should connect himself with those who had preceded him in the possession; nor was it necessary that the adverse possession should have been held up to known and visible boundaries, but only to the extent of the title claimed by the persons in possession, which might be shown by any of those ways which the law permits in the absence of metes and bounds set forth in deeds, or known and visible boundaries, as for instance, by the declarations of old men now dead, the deeds of neighboring tracts of land calling for the land in question by the name by which it was known, upon the principle, id certum est quod certum reddi potest. Fitzrandolph v. Norman, 4 N.C. 564 (1817); Candler v. Lunsford, 20 N.C. 542 (1839); Price v. Jackson, 91 N.C. 11 (1884).

As to the nature of the presumption of a grant from adverse possession under former law, see Melvin v. Waddell, 75 N.C. 361 (1876).

Effect of Section on Prior Law. - But the law is now changed, and the 30 years' adverse possession which was formerly held to be a presumption of a grant, is now by statute made, under certain circumstances, an absolute bar against the State. Price v. Jackson, 91 N.C. 11 (1884).

As to the nonretroactive effect of this section, see Johnson v. Parker, 79 N.C. 475 (1878).

Section Applies Only to Adverse Possession. - This section is confined to cases where, by reason of adverse possession of land for the time mentioned in the section, the State is willing to forego her title thereto, and agrees not to sue for the same nor for any of the issues or profits thereof. It was not intended by this section that the State should not be barred from recovering except by the lapse of 30 years or 21 years on personal actions after the State has parted with the title to the lands, for those periods relate only to the adverse possession, without or with color, which will be sufficient to bar the title. This section does not mean that the time limited for bringing any suit for the rents, issues or profits of land should be lengthened so that instead of being three years, as already specially prescribed by the statute, it should be 30 or 21 years. Tillery v. Whiteville Lumber Co., 172 N.C. 296, 90 S.E. 196 (1916).

The State is deemed to have surrendered its right where it permits adverse occupation of land under colorable title without interruption for 21 years, and a title vests in the occupant which can only be divested by a subsequent adverse possession by another till his right in turn ripens in the same way. Walker v. Moses, 113 N.C. 527, 18 S.E. 339 (1893).

As to the elements of adverse possession, see Hedrick v. Gobble, 61 N.C. 348 (1867); Malloy v. Bruden, 86 N.C. 251 (1882); State v. Brooks, 275 N.C. 175, 166 S.E.2d 70 (1969).

Showing of Privity Required. - In case of a reliance upon 30 years' adverse possession, the plaintiff must show a privity between himself and those who preceded him in the possession, and must also show that the possession was held up to known and visible boundaries. Price v. Jackson, 91 N.C. 11 (1884).

As to necessity of continuity and privity under former law, see Fitzrandolph v. Norman, 4 N.C. 564 (1817); Candler v. Lunsford, 20 N.C. 542 (1839); Reed v. Earnhart, 32 N.C. 516 (1849); Melvin v. Waddell, 75 N.C. 361 (1876); Davis v. McArthur, 78 N.C. 357 (1878); Cowles v. Hall, 90 N.C. 330 (1884); Mallett v. Simpson, 94 N.C. 37 (1886); Bryan v. Spivey, 109 N.C. 57, 13 S.E. 766 (1891); Hamilton v. Icard, 114 N.C. 532, 19 S.E. 607 (1894); Walden v. Ray, 121 N.C. 237, 28 S.E. 293 (1897); May v. Manufacturing & Trading Co., 164 N.C. 262, 80 S.E. 380 (1913).

Connection of Occupation with Boundaries. - Where there is a physical occupation with the claim extending to certain marked boundaries, there must be some evidence tending to connect such occupation with the boundaries claimed, or some exclusive control or dominion over the unoccupied portions of the land. May v. Manufacturing & Trading Co., 164 N.C. 262, 80 S.E. 380 (1913).

As to adverse possession against municipality, see Crump v. Mims, 64 N.C. 767 (1870); State v. Long, 94 N.C. 896 (1886); Moore v. Meroney, 154 N.C. 158, 69 S.E. 838 (1910); Threadgill v. Town of Wadesboro, 170 N.C. 641, 87 S.E. 521 (1916). See also, G.S. 1-45.

As to controversies between titles of different dates which lap, see Hedrick v. Gobble, 61 N.C. 348 (1867).

Effect on Running of Statute Where Overlapping Grant Is Made. - Where an occupant is seated on the interference when overlapping grant is issued, and is claiming colorable title adversely to the State under this section, the statute still continues to run in his favor as to the whole lappage unless the grantee, or those claiming under him, enter upon and occupy some portion of the lappage or bring an action. If, on the contrary, the occupant of the lappage wishes to use his adversary's grant to show that the title is out of the State in order to establish it in himself, by virtue of G.S. 1-38, he must prove an adverse occupation for seven years after the grantee's right of action accrued on receiving his grant. Hamilton v. Icard, 114 N.C. 532, 19 S.E. 607 (1894).

The constructive possession of one claiming under color of title for 21 years, the period necessary to give title against the State, is not interrupted by the mere issuance to another of a patent including part of the land claimed by him, where his actual possession is within the lappage. Hamilton v. Icard, 114 N.C. 532, 19 S.E. 607 (1894).

The party asserting title by adverse possession must carry the burden of proof on that issue. State v. Brooks, 275 N.C. 175, 166 S.E.2d 70 (1969).

Upon the principle that the plaintiff in an action for possession must show title good against the world, including the State under whom all lands are held, it has become a settled rule that where no grant is introduced the burden of proof cannot be shifted to the defendant in such actions without prima facie proof of possession under colorable title for 21 years under subdivision (2) of this section. Hamilton v. Icard, 114 N.C. 532, 19 S.E. 607 (1894).

In a case in which the State of North Carolina sought a declaratory judgment that it owned a 45-mile segment of the riverbed of the Yadkin River in North Carolina, that, over the past 100 years, a power company purportedly acquired by deed and developed, the company proved its title to 99% of relevant segment's riverbed under the Marketable Title Act and satisfied the requirements of acquiring the remaining 1% under adverse possession. North Carolina v. Alcoa Power Generating, 853 F.3d 140 (4th Cir. 2017), modified, 2017 U.S. App. LEXIS 8226 (2017).

Questions for Jury. - Where the evidence established 30 years' possession, questions as to whether such possession was adverse and as to whether such possession was held up to known and visible lines and boundaries, as required by this section, were still left for the jury's determination. McKay v. Bullard, 207 N.C. 628, 178 S.E. 95 (1935).

Application of G.S. 1-38 After Running of Statute Against State. - When a title was shown out of the State by adverse possession, G.S. 1-38 applied where one thereafter acquired title under a sheriff's deed and held possession thereunder for seven years. Walker v. Moses, 113 N.C. 527, 18 S.E. 339 (1893).

Evidence of Possession Held Insufficient. - Possession is insufficient to constitute the basis of adverse possession against the State or a private individual where the plaintiff merely shows that the agent of plaintiff's grantor raked and hauled straw one or two years and that plaintiff's father cultivated an acre or two of the land one year. Prevatt v. Harrelson, 132 N.C. 250, 43 S.E. 800 (1903).

The evidence was sufficient to support a directed verdict for the holder of a paper title on the theory that defendants did not establish title by adverse possession as contemplated by this section and G.S. 1-42. Peterson v. Sucro, 101 F.2d 282 (4th Cir. 1939).

Evidence of Possession Held Sufficient. - The evidence was held sufficient to be submitted to the jury on the issue of plaintiffs' actual, open, continuous, notorious and adverse possession of the lands sufficient to ripen title in plaintiffs under the provisions of this section, and defendants' motion to nonsuit was erroneously granted. Owens v. Blackwood Lumber Co., 210 N.C. 504, 187 S.E. 804 (1936).

district court properly found that the company had title to a 45-mile segment of the riverbed that it had purportedly acquired by deed and developed because the record supported the district court's treatment of the relevant segment as a single segment, North Carolina did not obtain title to the riverbeds of the relevant segment by virtue of sovereignty because the relevant segment was not navigable at statehood, the company proved its title to 99% of the relevant segment's riverbed under North Carolina's Real Property Marketable Title Act and no exception applied, and the company proved title to the remaining one percent under adverse possession. North Carolina v. Alcoa Power Generating, Inc., - F.3d - (4th Cir. Apr. 3, 2017), cert. denied, 138 S. Ct. 981, 2018 U.S. LEXIS 1371, 200 L. Ed. 2d 248 (U.S. 2018).

Applied in State v. West, 31 N.C. App. 431, 229 S.E.2d 826 (1976); Lancaster v. Maple St. Homeowners Ass'n, 156 N.C. App. 429, 577 S.E.2d 365 (2003), cert. denied, 357 N.C. 251, 582 S.E.2d 272 (2003).

Cited in Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142 (1889); Ware v. Knight, 199 N.C. 251, 154 S.E. 35 (1930); Virginia-Carolina Tie & Wood Co. v. Dunbar, 106 F.2d 383 (4th Cir. 1939); United States v. Burnette, 103 F. Supp. 645 (W.D.N.C. 1952); State v. Taylor, 60 N.C. App. 673, 300 S.E.2d 42, appeal dismissed and cert. denied, 308 N.C. 547, 303 S.E.2d 823 (1983), appeal dismissed, 465 U.S. 1075, 104 S. Ct. 1432, 79 L. Ed. 2d 756 (1984).


§ 1-36. Title presumed out of State.

In all actions involving the title to real property title is conclusively deemed to be out of the State unless it is a party to the action, but this section does not apply to the trials of protested entries laid for the purpose of obtaining grants, nor to actions instituted prior to May 1, 1917.

History

(1917, c. 195; C.S., s. 426.)

CASE NOTES

Purpose of Section. - The legislature enacted this section to remove the burdensome and untoward condition growing out of the difficulty of proving title out of the State. The section provides that, in actions between individual litigants, title shall be conclusively presumed to be out of the State. But there is no presumption in favor of one party or the other, nor is a litigant seeking to recover land otherwise relieved of the burden of showing title in himself. Moore v. Miller, 179 N.C. 396, 102 S.E. 627 (1920); Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692 (1952); McDonald v. McCrummen, 235 N.C. 550, 70 S.E.2d 703 (1952); Powell v. Mills, 237 N.C. 582, 75 S.E.2d 759 (1953).

Power of Legislature to Enact Section. - This section affects the remedy, the mode of procedure, and is within the power of the General Assembly to pass. Johnson v. Fry, 195 N.C. 832, 143 S.E. 857 (1928).

Section Not Retroactive. - This section, having no retrospective effect, is applicable only to actions commenced since May 1, 1917. Riddle v. Riddle, 176 N.C. 485, 97 S.E. 382 (1918); Johnson v. Fry, 195 N.C. 832, 143 S.E. 857 (1928).

Under this section neither party is required to show title out of the State though either may do so. Pennell v. Brookshire, 193 N.C. 73, 136 S.E. 257 (1927); Dill-Cramer-Truitt Corp. v. Downs, 195 N.C. 189, 141 S.E. 570 (1928). See also, Ward v. Smith, 223 N.C. 141, 25 S.E.2d 463 (1943).

Under this section, it is not necessary to prove that the sovereign has parted with its title when it is not a party to the action. Cothran v. Akers Motor Lines, 257 N.C. 782, 127 S.E.2d 578 (1962); King v. Lee, 9 N.C. App. 369, 176 S.E.2d 394 (1970), modified on other grounds, 279 N.C. 100, 181 S.E.2d 400 (1971).

Plaintiff Must Rely upon Strength of Own Title. - In actions involving title to real property, where the State is not a party, title is conclusively presumed out of the State, without a presumption in favor of either party, and plaintiff must rely upon the strength of his own title. Smith v. Benson, 227 N.C. 56, 40 S.E.2d 451 (1946).

Sources of Title Available. - Where plaintiff has sufficiently alleged general ownership of the locus in quo, he is not confined to the location of the adjoining boundary line under his grant, for he may avail himself of any source of title that he may be able to establish by his testimony. Stewart v. Stephenson, 172 N.C. 81, 89 S.E. 1060 (1916).

No Presumption in Favor of One Party or the Other. - Under this section, in all actions involving title to real property title is conclusively presumed to be out of the State unless it is a party to the action, but there is no presumption in favor of one party or the other, nor is a litigant seeking to recover land otherwise relieved of the burden of showing title in himself. Moore v. Miller, 179 N.C. 396, 102 S.E. 627 (1920); Locklear v. Oxendine, 233 N.C. 710, 65 S.E.2d 673 (1951); Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692 (1952); McDonald v. McCrummen, 235 N.C. 550, 70 S.E.2d 703 (1952); Powell v. Mills, 237 N.C. 582, 75 S.E.2d 759 (1953); Norman v. Williams, 241 N.C. 732, 86 S.E.2d 593 (1955); Scott v. Lewis, 246 N.C. 298, 98 S.E.2d 294 (1957); Tripp v. Keais, 255 N.C. 404, 121 S.E.2d 596 (1961); Campbell v. Mayberry, 12 N.C. App. 469, 183 S.E.2d 867, cert. denied, 279 N.C. 726, 184 S.E.2d 883 (1971).

In an action to recover lands by 20 years' adverse possession under G.S. 1-40, it is not required that the plaintiff should show title out of the State, except in cases of protested entries, etc., when the State is not a party to the action. Johnson v. Fry, 195 N.C. 832, 143 S.E. 857 (1928).

Title Out of State Presumed. - In a condemnation proceeding, where the question of ownership was essentially an action between individual litigants, and the State, although a party for purposes of condemnation, claimed title only by virtue of the condemnation and not otherwise, the presumption was that title was out of the State. State v. Johnson, 278 N.C. 126, 179 S.E.2d 371 (1971).

Applied in Berry v. Coppersmith, 212 N.C. 50, 193 S.E. 3 (1937); Sessoms v. McDonald, 237 N.C. 720, 75 S.E.2d 904 (1953).

Cited in Ware v. Knight, 199 N.C. 251, 154 S.E. 35 (1930); Owens v. Blackwood Lumber Co., 210 N.C. 504, 187 S.E. 804 (1936); Ramsey v. Ramsey, 224 N.C. 110, 29 S.E.2d 340 (1944); Vance v. Guy, 224 N.C. 607, 31 S.E.2d 766 (1944); Shingleton v. North Carolina Wildlife Resources Comm'n, 248 N.C. 89, 102 S.E.2d 402 (1958); Lachmann v. Baumann, 22 N.C. App. 160, 205 S.E.2d 805 (1974).


§ 1-37. Such possession valid against claimants under State.

All such possession as is described in G.S. 1-35, under such title as is therein described, is hereby ratified and confirmed, and declared to be good and legal bar against the entry or suit of any person, under the right or claim of the State.

History

(C.C.P., s. 19; Code, s. 140; Rev., s. 381; C.S., s. 427.)

CASE NOTES

This section does not apply where proof of possession is insufficient under G.S. 1-35. Prevatt v. Harrelson, 132 N.C. 250, 43 S.E. 800 (1903).

For application of this section and G.S. 1-30 against municipality under law prior to enactment of G.S. 1-45, see Threadgill v. Town of Wadesboro, 170 N.C. 641, 87 S.E. 521 (1916).

Cited in United States v. Burnette, 103 F. Supp. 645 (W.D.N.C. 1952).

§ 1-38. Seven years' possession under color of title.

  1. When a person or those under whom he claims is and has been in possession of any real property, under known and visible lines and boundaries and under color of title, for seven years, no entry shall be made or action sustained against such possessor by a person having any right or title to the same, except during the seven years next after his right or title has descended or accrued, who in default of suing within that time shall be excluded from any claim thereafter made; and such possession, so held, is a perpetual bar against all persons not under disability: Provided, that commissioner's deeds in judicial sales and trustee's deeds under foreclosure shall also constitute color of title.
  2. If
    1. The marking of boundaries on the property by distinctive markings on trees or by the implacement of visible metal or concrete boundary markers in the boundary lines surrounding the property, such markings to be visible to a height of 18 inches above the ground, and
    2. The recording of a map prepared from an actual survey by a surveyor registered under the laws of North Carolina, in the book of maps in the office of the register of deeds in the county where the real property is located, with a certificate attached to said map by which the surveyor certifies that the boundaries as shown by the map are those described in the deed or other title instrument or proceeding from which the survey was made, the surveyor's certificate reciting the book and page or file number of the deed, other title instrument or proceeding from which the survey was made,
  3. Maps recorded prior to October 1, 1973 shall qualify as if they had been certified as herein provided if said maps can be proven to conform to the boundary lines on the ground and to conform to instruments of record conveying the land which is the subject matter of the map, to the person whose name is indicated on said recorded map as the owner thereof. Maps recorded after October 1, 1973 shall comply with the provisions for a certificate as hereinbefore set forth.

then the listing and paying of taxes on the real property marked and for which a survey and map have been certified and recorded as provided in subdivisions (1) and (2) above shall constitute prima facie evidence of possession of real property under known and visible lines and boundaries. Maps recorded prior to October 1, 1973 may be qualified under this statute by the recording of certificates prepared in accordance with subdivision (b)(2) above. Such certificates must contain the book and page number where the map is filed, in addition to the information required by subdivision (b)(2) above, and shall be recorded and indexed in the deed books. When a certificate is filed to qualify such a recorded map, the register of deeds shall make a marginal notation on the map in the following form: "Certificate filed pursuant to G.S. 1-38(b), book ________ (enter book where filed), page ________".

History

(C.C.P., s. 20; Code, s. 141; Rev., s. 382; C.S., s. 428; 1963, c. 1132; 1973, c. 250; 1975, c. 207.)

Cross References. - As to title against the State, see G.S. 1-35.

As to title being presumed out of State, see G.S. 1-36.

As to adverse possession of 20 years, see G.S. 1-40.

Legal Periodicals. - For article, "Adverse Possession - Color of Title," see 16 N.C.L. Rev. 149 (1933).

For note on tacking successive adverse possessions of a strip of land not included in a deed, see 31 N.C.L. Rev. 478 (1953).

For note on intent as a requisite in mistaken boundary cases, see 33 N.C.L. Rev. 632 (1955).

For note on tax foreclosure deed to property held by tenants in common as color of title, see 36 N.C.L. Rev. 526 (1958).

For article, "Transferring North Carolina Real Estate Part I: How the Present System Functions," see 49 N.C.L. Rev. 413 (1971).

For survey of 1980 property law, see 59 N.C.L. Rev. 1209 (1981).

For article discussing the doctrine of color of title in North Carolina, see 13 N.C. Cent. L.J. 123 (1982).

For note, "Walls v. Grohman: Adverse Possession in Mistaken Boundary Cases," see 64 N.C.L. Rev. 1496 (1986).

For comment on the acquisition, abandonment, and preservation of rail corridors in North Carolina, see 75 N.C.L. Rev. 1989 (1997).

For article, "Torrens Title in North Carolina-Maybe a Hundred Years Is Long Enough," see 39 Campbell L. Rev. 271 (2017).

CASE NOTES

I. IN GENERAL.

Editor's Note. - Many of the cases cited below may also have application to the 20 year statute, G.S. 1-40.

This section has no reference to titles good in themselves, but is intended to protect apparent titles void in law. Lofton v. Barber, 226 N.C. 481, 39 S.E.2d 263 (1946).

Section Applies to State and Its Agencies. - The General Assembly intended that this section and G.S. 1-40 should apply to any legal entity, including the State and its agencies, capable of adversely possessing land and of acquiring title thereto. Williams v. North Carolina State Bd. of Educ., 266 N.C. 761, 147 S.E.2d 381 (1966), commented on in 45 N.C.L. Rev. 964 (1967).

Limitations for Ejectment Actions. - This section and G.S. 1-40 are the applicable statutes of limitation for ejectment actions. These statutes prescribe the period of time beyond which the owner of land is not privileged to bring an action for the recovery of his land from a person in possession thereof. Poore v. Swan Quarter Farms, Inc., 79 N.C. App. 286, 338 S.E.2d 817 (1986).

Actions to remove a cloud upon title are in essence ejectment actions and are properly reviewed as such where defendants are in actual possession and plaintiffs seek to recover possession. Poore v. Swan Quarter Farms, Inc., 79 N.C. App. 286, 338 S.E.2d 817 (1986).

Where plaintiffs made no specific allegation that defendants were in actual possession at the time of the filing of their action, and did not seek specifically to recover possession in their demand for relief, but merely prayed for rents and profits and removal of certain deeds as a cloud upon their title, plaintiffs' action was not in essence one for ejectment, controlled by this section and G.S. 1-40; rather, plaintiffs' action was one to remove a cloud upon title, which was not barred by any statute of limitations. Poore v. Swan Quarter Farms, Inc., 79 N.C. App. 286, 338 S.E.2d 817 (1986).

Adverse possession and prescription may be had against a trustee, even if the cestui que trust is under a disability and out of the State. Blake v. Allman, 58 N.C. 407 (1860).

And where title is lost by the trustee, the cestui que trust is also concluded. King v. Rhew, 108 N.C. 696, 13 S.E. 174 (1891); Cameron v. Hicks, 141 N.C. 21, 53 S.E. 728 (1906).

Joint tenants and tenants in common may lose property by adverse possession, and what is sufficient against one is sufficient against all. Cameron v. Hicks, 141 N.C. 21, 53 S.E. 728 (1906).

As to effect of disability on adverse possession, see Clayton v. Rose, 87 N.C. 106 (1882); Stone v. Conder, 46 N.C. App. 190, 264 S.E.2d 760 (1980).

A cause of action to set aside a deed executed by a person who is non compos mentis must be brought within seven years from the date of execution, or within three years next after the removal of the disability, whichever period expires later. Emanuel v. Emanuel, 78 N.C. App. 799, 338 S.E.2d 620 (1986).

Compulsory Reference. - An action in ejectment in which defendants pleaded the twenty and the seven-year statutes of limitation was not subject to compulsory reference pursuant to former G.S. 1-189. Williams v. Robertson, 233 N.C. 309, 63 S.E.2d 632 (1951).

Effect on Lien of Judgment Creditor. - Adverse possession against a judgment debtor for a period of seven years under color of title does not affect the lien of a judgment creditor, the judgment creditor having no right of entry or cause of action for possession, but only a lien enforceable according to the prescribed procedure, and as to him the possession is not adverse. Moses v. Major, 201 N.C. 613, 160 S.E. 890 (1931).

Landowner with Good Title Cannot Ignore Duly Recorded Easement. - When it is shown that landowner has a good title based on a connected chain of title to a common source, such landowner will not be permitted to ignore a duly recorded easement granted by his predecessors in title by the fiction of treating his valid deed merely as color of title and thereby defeat an outstanding valid easement by adverse possession for a period of seven years. Hensley v. Ramsey, 283 N.C. 714, 199 S.E.2d 1 (1973).

This section is applicable to prescriptive easements. Higdon v. Davis, 71 N.C. App. 640, 324 S.E.2d 5 (1984).

The doctrine of color of title is applicable to acquisition of title to an easement by prescription. Higdon v. Davis, 71 N.C. App. 640, 324 S.E.2d 5 (1984), rev'd on other grounds, 315 N.C. 208, 337 S.E.2d 543 (1985).

Town satisfied the requirements for a prescriptive easement in a road over defendant's land which had been used by the public and as a mail and school bus route since 1956 or at least since 1963 until 1985, and which had been maintained, however poorly, by the town. Town of Sparta v. Hamm, 97 N.C. App. 82, 387 S.E.2d 173 (1990), cert. denied, 326 N.C. 366, 389 S.E.2d 819 (1990).

The period for acquiring an easement by prescription is now seven years where the claim is under color of title pursuant to this section. The burden is on defendants to show that they used the easement more or less frequently according to the nature of the easement and that they used the easement for seven years. Higdon v. Davis, 71 N.C. App. 640, 324 S.E.2d 5 (1984), rev'd on other grounds, 315 N.C. 208, 337 S.E.2d 543 (1985).

Where one can acquire fee simple title to the greater interest under color of title pursuant to this section, common sense dictates that, in the absence of statutes to the contrary, one should also be able to acquire title to easements appurtenant to that interest in the same statutory period. To hold otherwise would require the grantee to wait 20 years to gain title to an easement he had bargained for in the deed from his grantor, when he would be required to wait only seven years for the real property itself, if the grantor had not in fact had title to convey. This is not logically consistent and would produce harsh results. Higdon v. Davis, 71 N.C. App. 640, 324 S.E.2d 5 (1984), rev'd on other grounds, 315 N.C. 208, 337 S.E.2d 543 (1985).

The following legal principles relating to easements by prescription have evolved in North Carolina appellate decisions: (1) The burden of proving the elements essential to the acquisition of a prescriptive easement is on the party claiming the easement; (2) the law presumes that the use of a way over another's land is permissive or with the owner's consent unless the contrary appears; (3) the use must be adverse, hostile, and under a claim of right; (4) the use must be open and notorious; (5) the adverse use must be continuous and uninterrupted for a period of 20 years and (6) there must be substantial identity of the easement claimed. Higdon v. Davis, 71 N.C. App. 640, 324 S.E.2d 5 (1984), rev'd on other grounds, 315 N.C. 208, 337 S.E.2d 543 (1985).

G.S. 1-56 Inapplicable to Recovery of Realty. - This section and G.S. 1-40 apply to actions for the recovery of real estate, to the exclusion of G.S. 1-56. Williams v. Scott, 122 N.C. 545, 29 S.E. 877 (1898).

Section Held Tolled by Federal Law. - This section, the seven-year statute of limitations for adverse possession under color of title, was automatically and unconditionally tolled by 50 U.S.C.A. App. § 525 of the Soldiers' and Sailors' Civil Relief Act until plaintiff's retirement from military service in June, 1983. Taylor v. North Carolina DOT, 86 N.C. App. 299, 357 S.E.2d 439 (1987).

Applied in Betts v. Gahagan, 212 F. 120 (4th Cir. 1914); Nichols v. York, 219 N.C. 262, 13 S.E.2d 565 (1941); Layden v. Layden, 228 N.C. 5, 44 S.E.2d 340 (1947); Hughes v. Oliver, 228 N.C. 680, 47 S.E.2d 6 (1948); Grady v. Parker, 230 N.C. 166, 52 S.E.2d 273 (1949); Washington v. McLawhorn, 237 N.C. 449, 75 S.E.2d 402 (1953); Newkirk v. Porter, 240 N.C. 296, 82 S.E.2d 74 (1954); Lachmann v. Baumann, 22 N.C. App. 160, 205 S.E.2d 805 (1974); Kennedy v. Whaley, 55 N.C. App. 321, 285 S.E.2d 621 (1982); Foreman v. Sholl, 339 N.C. 593, 453 S.E.2d 162 (1995); Spears v. Moore, 145 N.C. App. 706, 551 S.E.2d 483 (2001).

Cited in Atwell v. Shook, 133 N.C. 387, 45 S.E. 777 (1903); Clendenin v. Clendenin, 181 N.C. 465, 107 S.E. 458 (1921); Virginia-Carolina Power Co. v. Taylor, 191 N.C. 329, 131 S.E. 646 (1926); Dill-Cramer-Truitt Corp. v. Downs, 195 N.C. 189, 141 S.E. 570 (1928); Owens v. Blackwood Lumber Co., 210 N.C. 504, 187 S.E. 804 (1936); McKay v. Bullard, 219 N.C. 589, 14 S.E.2d 657 (1941); Parham v. Henley, 224 N.C. 405, 30 S.E.2d 372 (1944); Perry v. Alford, 225 N.C. 146, 33 S.E.2d 665 (1945); Ramsey v. Nebel, 226 N.C. 590, 39 S.E.2d 616 (1946); Smith v. Benson, 227 N.C. 56, 40 S.E.2d 451 (1946); Venus Lodge No. 62 v. Acme Benevolent Ass'n, 231 N.C. 522, 58 S.E.2d 109, 15 A.L.R.2d 1446 (1950); United States v. Burnette, 103 F. Supp. 645 (W.D.N.C. 1952); Wilson v. Chandler, 235 N.C. 373, 70 S.E.2d 179 (1952); Chambers v. Chambers, 235 N.C. 749, 71 S.E.2d 57 (1952); Waddell v. Carson, 245 N.C. 669, 97 S.E.2d 222 (1957); Morehead v. Harris, 255 N.C. 130, 120 S.E.2d 425 (1961); Lane v. Lane, 255 N.C. 444, 121 S.E.2d 893 (1961); Mallet v. Huske, 262 N.C. 177, 136 S.E.2d 553 (1964); Patterson v. Buchanan, 265 N.C. 214, 143 S.E.2d 76 (1965); Scott Poultry Co. v. Graves, 272 N.C. 22, 157 S.E.2d 608 (1967); McRorie v. Shinn, 11 N.C. App. 475, 181 S.E.2d 773 (1971); Rice v. Randolph, 96 N.C. App. 112, 384 S.E.2d 295 (1989); Rudisail v. Allison, 108 N.C. App. 684, 424 S.E.2d 696 (1993); Marlowe v. Clark, 112 N.C. App. 181, 435 S.E.2d 354 (1993); Beam v. Kerlee, 120 N.C. App. 203, 461 S.E.2d 911 (1995); Pegg v. Jones, 187 N.C. App. 355, 653 S.E.2d 229 (2007), aff'd, 362 N.C. 343, 661 S.E.2d 732 (2008).

II. POSSESSION, GENERALLY.

Mere possession does not necessarily amount to adverse possession in law. Barbee v. Edwards, 238 N.C. 215, 77 S.E.2d 646 (1953).

Adverse possession is actual possession in the character of owner, evidenced by making the ordinary uses and taking the usual profits of which the property is susceptible in its present state, to the exclusion of all others, including the true owner. Carswell v. Creswell, 217 N.C. 40, 7 S.E.2d 58 (1940).

Elements of Adverse Possession, Generally. - Adverse possession consists in actual possession, with an intent to hold solely for the possessor to the exclusion of others, and is denoted by the exercise of acts of dominion over the land, in making the ordinary use and taking the ordinary profits of which it is susceptible in its present state, such acts to be so repeated as to show that they are done in the character of owner, in opposition to the right or claim of any other person, and not merely as an occasional trespasser. It must be as decided and notorious as the nature of the land will permit, affording unequivocal indication to all persons that one is exercising the dominion of owner. Locklear v. Savage, 159 N.C. 236, 74 S.E. 347 (1912); Mallet v. Huske, 262 N.C. 177, 136 S.E.2d 553 (1964); Price v. Tomrich Corp., 275 N.C. 385, 167 S.E.2d 766 (1969); Wilson County Bd. of Educ. v. Lamm, 276 N.C. 487, 173 S.E.2d 281 (1970); Barringer v. Weathington, 11 N.C. App. 618, 182 S.E.2d 239 (1971).

In order for adverse possession to ripen title in the possessor, the possession must be actual, open, hostile, exclusive and continuous. Campbell v. Mayberry, 12 N.C. App. 469, 183 S.E.2d 867, cert. denied, 279 N.C. 726, 184 S.E.2d 883 (1971).

Possession of real property, to be adverse, must be actual possession, and must be open, decided and as notorious as the nature of the property will permit, indicating assertion of exclusive ownership, and of intention to exercise dominion over it against all other claimants. The possession must be continuous, though not necessarily unceasing, for the statutory period, and of such character as to subject the property to the only use of which it is susceptible. Vance v. Guy, 223 N.C. 409, 27 S.E.2d 117 (1943).

Such adverse possession as will ripen into title must be for the prescribed period of time and must be clear, definite, positive and notorious. It must be continuous, adverse, hostile and exclusive during the whole statutory period, and under a claim of title to the land occupied. Bland v. Beasley, 145 N.C. 168, 58 S.E. 993 (1907).

Under either this section or G.S. 1-40, in order to bar the true owner of land from recovering it from an occupant in adverse possession, the possession relied on must have been actual, open, visible, notorious, continuous and hostile to the true owner's title and to all persons for the full statutory period. Newkirk v. Porter, 237 N.C. 115, 74 S.E.2d 235 (1953); Watson v. Chilton, 14 N.C. App. 7, 187 S.E.2d 482 (1972).

The adverse possession for seven years under color which bars the entry of the true owner, must be open, continuous, uninterrupted and manifested by distinct and unequivocal acts of ownership, the burden being upon him who asserts that he has thus acquired the title to show such actual adverse possession. Monk v. Wilmington, 137 N.C. 322, 49 S.E. 345 (1904); Bland v. Beasley, 145 N.C. 168, 58 S.E. 993 (1907); Stewart v. McCormick, 161 N.C. 625, 77 S.E. 761 (1913).

In order to prevail on claim of adverse possession, evidence must show both actual and adverse possession for the full seven-year period prescribed in this section. Phipps v. Paley, 90 N.C. App. 170, 368 S.E.2d 21, cert. denied, 323 N.C. 175, 373 S.E.2d 114 (1988).

Acts of Possession Must Give Owner Cause of Action. - The claim must be adverse and accompanied by such an invasion of the rights of the opposite party as to give him a cause of action. It is the occupation with the intent to claim against the true owner which renders the entry and possession adverse. Snowden v. Bell, 159 N.C. 497, 75 S.E. 721 (1912).

And Make Claimant Liable to Action of Ejectment. - In order to ripen a colorable title into a good title, there must be such possession and acts of dominion by the colorable claimant as will make him liable to an action of ejectment. Justice v. Mitchell, 238 N.C. 364, 78 S.E.2d 122 (1953).

To convert the shadow of color of title into perfect title, possession must be continuous, open, notorious, as well as adverse. It must be of such character as to put the true owner on notice of the adverse claim. It must suffice to subject the occupant to an action in ejectment as distinguished from a mere trespass quare clausum fregit. Bowers v. Mitchell, 258 N.C. 80, 128 S.E.2d 6 (1962).

Owner's Knowledge of Possession Not Required. - Although the possession must always be so notorious as to be visible, it is not necessary that the true owner have actual knowledge. It is sufficient if the possession would be notice of its adverse character to the ordinary person if he should make the observation that the ordinary owner would make of his own property. The owner is bound to ascertain the nature of the claim after notice has been given him. Kennedy v. Maness, 138 N.C. 35, 50 S.E. 450 (1905).

The operation of the statute of limitations depends upon two things: The one is possession continued for seven years; and the other the character of that possession - that it should be adverse. It has never been held that the owner should actually know of the fact of possession, nor have actual knowledge of the nature or extent of the possessor's claim. It is presumed, indeed, that he will acquire the knowledge, and it is intended that he should. Green v. Harman, 15 N.C. 158 (1833); Blue Ridge Land Co. v. Floyd, 171 N.C. 543, 88 S.E. 862 (1916).

But Possession Must Be So Notorious as to Put True Owner on Notice of Adverse Claim. - The rule requiring physical possession so notorious as to put the true owner on notice of the adverse claim in order to mature claimant's title is as well settled as the rule requiring plaintiff to establish his title. Cothran v. Akers Motor Lines, 257 N.C. 782, 127 S.E.2d 578 (1962).

The possession of one under color is sufficient notice of his claim of title to the lands. Butler v. Bell, 181 N.C. 85, 106 S.E. 217 (1921).

Test for Determining Sufficiency of Acts of Possession. - A possession that ripens into title must be such as continually subjects some portion of the disputed land to the only use of which it is susceptible, or it must be an actual and continuous occupation of a house or the cultivation of a field, however small, according to the usages of husbandry. The test is involved in the question whether the acts of ownership were such as to subject the claimant continually during the whole statutory period to an action in the nature of trespass in ejectment instead of to one or several actions of trespass quare clausum fregit for damages. Shaffer v. Gaynor, 117 N.C. 15, 23 S.E. 154 (1895); Mallet v. Huske, 262 N.C. 177, 136 S.E.2d 553 (1964).

Paying taxes is not enough to constitute adverse possession. The payment of taxes is an assertion of a mere claim of title and therefore is insufficient, because it is not an actual, open, visible occupation begun and continued under a claim of right. Malloy v. Bruden, 86 N.C. 251 (1882) (decided prior to enactment of subsections (b) and (c) of this section).

Listing and payment of taxes would not suffice to support an action in ejectment or trespass, which is the test of possession referred to in this section and G.S. 1-40. Chisholm v. Hall, 255 N.C. 374, 121 S.E.2d 726 (1961) (decided prior to subsections (b) and (c) of this section).

The payment of property taxes is evidence of the adverse nature of a claim, but it is not evidence of actual possession. Phipps v. Paley, 90 N.C. App. 170, 368 S.E.2d 21, cert. denied, 323 N.C. 175, 373 S.E.2d 114 (1988).

However, payment of taxes constitutes a relevant fact in establishing a claim of title and may be considered along with evidence of possession in proving adverse possession. Austin v. King, 97 N.C. 339, 2 S.E. 678 (1887); Christman v. Hilliard, 167 N.C. 4, 82 S.E. 949 (1914) (decided prior to enactment of subsections (b) and (c) of this section).

The fact that defendants listed and paid taxes was evidence of the character of their claim, but it was no evidence of actual possession. Chisholm v. Hall, 255 N.C. 374, 121 S.E.2d 726 (1961) (decided prior to enactment of subsections (b) and (c) of this section).

Giving permission to hunt, like the payment of taxes, is evidence of an adverse claim, but is not possession. Price v. Tomrich Corp., 275 N.C. 385, 167 S.E.2d 766 (1969).

Cutting Timber or Pulpwood. - When cutting timber or pulpwood is relied upon to show adverse possession it must be kept up with such frequency and regularity as to give notice to the public that the party cutting or having it cut is claiming the land as his own. Price v. Tomrich Corp., 275 N.C. 385, 167 S.E.2d 766 (1969).

Use of Way over Another's Land. - In North Carolina there is a presumption that the use of a way over another's land is permissive unless evidence appears to the contrary. Potts v. Burnette, 46 N.C. App. 626, 265 S.E.2d 504 (1980), rev'd on other grounds, 301 N.C. 663, 273 S.E.2d 285 (1981).

Possession for Over a Century. - Where defendant State of North Carolina and the North Carolina Diocese had possessed the property in question for over a century, to the extent plaintiffs' allege that defendants held the property under color of title, plaintiffs' claim was barred by the applicable seven year statutory period. Majeed v. North Carolina, 520 F. Supp. 2d 720 (E.D.N.C. Oct. 4, 2007).

Acts of Possession Held Sufficient. - Continuously cutting timber and making shingles in a swamp which was unfit for cultivation, for seven years, was a good possession. Tredwell v. Reddick, 23 N.C. 56 (1840), cited in Loftin v. Cobb, 46 N.C. 406 (1854).

Maintaining fish traps, erecting and repairing dams and using the property every year during the fishing season for a sufficient number of years is sufficient possession of a nonnavigable stream. Locklear v. Savage, 159 N.C. 236, 74 S.E. 347 (1912).

For additional cases in which acts of possession were found sufficient, see Andrews v. Mulford, 2 N.C. 311 (1796); Burton v. Carruth, 18 N.C. 2 (1834); Wallace v. Maxwell, 32 N.C. 110 (1849); Smith v. Bryan, 44 N.C. 180 (1852); Moore v. Thompson, 69 N.C. 120 (1873); Gudger v. Hensley, 82 N.C. 482 (1880); Staton v. Mullis, 92 N.C. 623 (1885); Wall v. Wall, 142 N.C. 387, 55 S.E. 283 (1906); LaRoque v. Kennedy, 156 N.C. 360, 72 S.E. 454 (1911).

Acts of Possession Held Insufficient. - Cutting trees and feeding hogs upon land susceptible of other uses is insufficient. Loftin v. Cobb, 46 N.C. 406 (1854).

Payment of taxes and the employment of agents in respect to land were insufficient acts to constitute possession. Ruffin v. Overby, 88 N.C. 369 (1883), decided prior to enactment of subsections (b) and (c) of this section.

Possession by a tenant of defendant's ancestor for one year, under his deed, and occasional entry upon the land by his heirs at law after his death, for the purpose of cutting a few logs, was insufficient evidence of adverse possession in character and continuity to be submitted to the jury. Blue Ridge Land Co. v. Floyd, 167 N.C. 686, 83 S.E. 687 (1914).

Posting land and keeping away trespassers is insufficient because it is not a visible and notorious possession. Berry v. Richmond Cedar Works, 184 N.C. 187, 113 S.E. 772 (1922).

For additional cases in which acts of possession were held insufficient, see Ward v. Herrin, 49 N.C. 23 (1856); Bartlett v. Simmons, 49 N.C. 295 (1857); Hamilton v. Icard, 114 N.C. 532, 19 S.E. 607 (1894); State v. Suttle, 115 N.C. 784, 20 S.E. 725 (1894); Shaffer v. Gaynor, 117 N.C. 15, 23 S.E. 154 (1895); Hamilton v. Icard, 117 N.C. 476, 23 S.E. 354 (1895); Prevatt v. Harrelson, 132 N.C. 250, 43 S.E. 800 (1903); Campbell v. Miller, 165 N.C. 51, 80 S.E. 974 (1914); Blue Ridge Land Co. v. Floyd, 167 N.C. 686, 83 S.E. 687 (1914).

Posts which were erected less than seven years before action was commenced could not be used to establish possession. Phipps v. Paley, 90 N.C. App. 170, 368 S.E.2d 21, cert. denied, 323 N.C. 175, 373 S.E.2d 114 (1988).

III. HOSTILE OR ADVERSE NATURE OF POSSESSION.

.

As to requirement that possession be hostile to the true owner, see Gwyn v. Stokes, 9 N.C. 235 (1822); Rogers v. Mabe, 15 N.C. 180 (1833); Foscue v. Foscue, 37 N.C. 321 (1842); Johnson v. Farlow, 35 N.C. 84 (1851); Bland v. Beasley, 145 N.C. 168, 58 S.E. 993 (1907).

In order to establish that a use is hostile, it is not necessary to show a heated controversy, but it is necessary to show that the use was of a nature that would give the owner of the land notice that the use was being made under a claim of right. Potts v. Burnette, 46 N.C. App. 626, 265 S.E.2d 504 (1980), rev'd on other grounds, 301 N.C. 663, 273 S.E.2d 285 (1981).

To establish that a use is hostile rather than permissive, it is not necessary to show that there was a heated controversy, or a manifestation of ill will, or that the claimant was in any sense an enemy of the owner of the servient estate. A hostile use is simply a use of such nature and exercise under circumstances which manifest and give notice that the use is being made under a claim of right. Higdon v. Davis, 71 N.C. App. 640, 324 S.E.2d 5 (1984), rev'd on other grounds, 315 N.C. 208, 337 S.E.2d 543 (1985).

There must be some evidence accompanying the use which tends to show that the use is hostile in character and tends to repel the inference that the use is permissive and with the owner's consent. A mere permissive use of a way over another's land, however long it may be continued, can never ripen into an easement by prescription. Higdon v. Davis, 71 N.C. App. 640, 324 S.E.2d 5 (1984), rev'd on other grounds, 315 N.C. 208, 337 S.E.2d 543 (1985).

Exercise of Dominion Required. - The adverse possession must constitute an exercise of dominion over the land, making the ordinary use and taking the ordinary profits of which it is susceptible, and must subject the claimant during the whole statutory period to an action in ejectment. Crisp v. Benfield, 64 N.C. App. 357, 307 S.E.2d 179 (1983).

Title Must Be Claimed Against All the World. - Possession must be adverse; that is, title must be claimed against all the world. United States v. Chatham, 208 F. Supp. 220 (W.D.N.C. 1962), aff'd in part and rev'd in part, 323 F.2d 95 (4th Cir. 1963).

Hostile Act Does Not Start Running of Statute Against Owner in Possession. - In determining when the owner of real estate must assert his rights against an adverse claim, the rule is that an owner in possession is not required to take notice of a hostile claim. Accordingly, the hostile act or claim of a person not in possession ordinarily does not start the running of the statute of limitations against an owner in possession and occupancy. The foregoing rule applies to an equitable owner in possession of land; so long as he retains possession, nothing else appearing, the statute of limitations does not run against him. Solon Lodge v. Ionic Lodge, 247 N.C. 310, 101 S.E.2d 8 (1957).

Possession of one tenant in common is presumed to be the possession of all tenants. Watson v. Chilton, 14 N.C. App. 7, 187 S.E.2d 482 (1972).

Until Actual Ouster or a Sole Adverse Possession. - The possession of one tenant in common is in law the possession of all his cotenants, unless and until there is an actual ouster or a sole adverse possession for 20 years. Winstead v. Woolard, 223 N.C. 814, 28 S.E.2d 507 (1944).

Ouster and Possession by Tenant in Common Against Cotenants. - There may be an entry or possession of one tenant in common which may amount to an actual ouster, so as to enable his cotenant to bring ejectment against him, but it must be by some clear, positive and unequivocal act equivalent to an open denial of his right and to putting him out of the seizin. Such an actual ouster, followed by possession for the requisite time, will bar the cotenant's entry. Dobbins v. Dobbins, 141 N.C. 210, 53 S.E. 870 (1906). See also, Tharpe v. Holcomb, 126 N.C. 365, 35 S.E. 608 (1900).

Where a mortgage is made to one tenant in common by the other tenants therein, it is an ouster that puts them to their action and commences the running of the statute of limitations, either under seven years' color or under 20 years otherwise. Hence, where plaintiffs sought to be let into possession of lands as tenants in common, and it appeared without conflicting evidence that defendants had been in peaceful possession under a mortgage from ancestor for more than 30 years after ouster, no issue of fact was raised for the determination of the jury, the title being complete in the adverse possessors. Crews v. Crews, 192 N.C. 679, 135 S.E. 784 (1926).

When Statute Runs Against Remaindermen. - Title by adverse possession cannot be had against remaindermen before life estate has ended, because no actual possession of the remainder may be had, but title to the life estate may be gained at such time. Brown v. Brown, 168 N.C. 4, 84 S.E. 25 (1915).

The statutes cannot begin to run against remaindermen until expiration of the particular estate. Huneycutt v. Brooks, 116 N.C. 788, 21 S.E. 558 (1895); Roe v. Journigan, 181 N.C. 180, 106 S.E. 680 (1921).

The statute will not ordinarily begin running against a remainderman until the falling in of the life estate. Roe v. Journigan, 181 N.C. 180, 106 S.E. 680 (1921).

Possession of real property cannot be adverse to remaindermen until the death of the life tenant, even though during the lifetime of the life tenant he gave a deed purporting to convey a fee. Stone v. Conder, 46 N.C. App. 190, 264 S.E.2d 760 (1980).

Possession by the grantee of a life tenant is not adverse to the rights of the remaindermen during the life of the life tenant. The seven-year statute of limitation prescribed by this section does not begin to run against the remaindermen until the life tenant dies. Sprinkle v. City of Reidsville, 235 N.C. 140, 69 S.E.2d 179 (1952).

Grantee in a deed conveying only the life estate of the grantor cannot hold adversely to the remaindermen until the death of the grantor. Lovett v. Stone, 239 N.C. 206, 79 S.E.2d 479 (1954).

Possession by Parent Against Child or Vice Versa. - In order that a possession by a parent against a child, or vice versa, may become adverse, the owner must have had some clear, definite and unequivocal notice of the adverse claimant's intention to assert an exclusive ownership in himself. Watson v. Chilton, 14 N.C. App. 7, 187 S.E.2d 482 (1972).

Claim Under Void Devise Is Not Adverse. - Where one enters into possession of lands claiming as a devisee under a will, and the devise is void, he does not claim adversely, but rather permissively or mistakenly. Watson v. Chilton, 14 N.C. App. 7, 187 S.E.2d 482 (1972).

Possession Held to Be Adverse to Owner. - After abandonment, wife's possession as purchaser at execution sale of a judgment obtained against her husband was adverse to the husband, and her possession for the period required by this section would bar him. Campbell v. Campbell, 221 N.C. 257, 20 S.E.2d 53 (1942).

Possession Held Not to Be Adverse. - Where plaintiffs claimed under foreclosure of a tax sale certificate in a proceeding instituted solely against the life tenant, in which the remaindermen were neither parties nor brought before the court in any manner sanctioned by law, while commissioner's deed of foreclosure did not affect the interest of the remaindermen, it did convey the interest of the life tenant; hence, plaintiffs were entitled to possession during the continuance of the life estate, but their possession could not be adverse to the remaindermen until the death of the life tenant gave them legal power to sue. Eason v. Spence, 232 N.C. 579, 61 S.E.2d 717 (1950).

Persons in possession pursuant to foreclosure of tax sale certificate conveying only title of life tenant could not maintain that their possession was adverse to the remaindermen on the ground that the life tenant's failure to pay taxes forfeited her estate to the remaindermen and thus gave them immediate right to possession, since such forfeiture under former G.S. 105-410 was not automatic but had to be judicially determined in an appropriate proceeding. Eason v. Spence, 232 N.C. 579, 61 S.E.2d 717 (1950).

Where two persons owned adjoining lands, and one ran a fence so near the line as to induce the jury to believe that any slight encroachments were inadvertently made and that it was the design to run on the line, the possession constituted by the enclosure would be regarded as permissive, and could not be treated as adverse, even for the land within the fence, except as it furnished evidence of the line in a case of disputed boundary. The line being admitted, it would not make a title, where a naked adverse possession would have had that effect, because there was no intention to go beyond the deed, but an intention to keep within it. Currie v. Gilchrist, 147 N.C. 648, 61 S.E. 581 (1908); Blue Ridge Land Co. v. Floyd, 171 N.C. 543, 88 S.E. 862 (1916).

Institution of Torrens Proceeding as Ouster Permitting Defendants to Ripen Title. - Where defendants, who held deeds to land which were color of title, and plaintiffs, who had superior chain of title to same property, were tenants in common as to the property, and after certain incidents, plaintiff's predecessor in interest brought a Torrens proceeding to establish sole ownership of the property, institution of that action gave plaintiffs actual notice that defendants were claiming the property to the exclusion of plaintiffs and their predecessors, and an actual ouster had occurred. Once plaintiffs were ousted, defendants could ripen title in seven years under this section. Willis v. Mann, 96 N.C. App. 450, 386 S.E.2d 68 (1989), cert. denied, 326 N.C. 367, 389 S.E.2d 820 (1990).

IV. CONTINUITY OF POSSESSION.

.

Occasional acts of ownership, no matter how adverse, do not constitute a possession that will mature title. Sessoms v. McDonald, 237 N.C. 720, 75 S.E.2d 904 (1953).

Continuous and Uninterrupted Possession Is Required. - Continuity of possession being one of the essential elements of adverse possession, in order that title may be ripened thereby, such possession must be shown to have been continuous and uninterrupted for the full statutory period. This is because if the possession of the adverse claimant is broken, the constructive possession of the true owner intervenes and destroys the effectiveness of the prior possession. Newkirk v. Porter, 237 N.C. 115, 74 S.E.2d 235 (1953).

While the possession need not be unceasing, the evidence should be such as to warrant the inference that the actual use and occupation have extended over the required period, and that during it the claimant has from time to time continuously subjected the disputed land to the only use of which it was susceptible. Locklear v. Savage, 159 N.C. 236, 74 S.E. 347 (1912); Cross v. Seaboard Air Line Ry., 172 N.C. 119, 90 S.E. 14 (1916).

And Must Be Proved. - In proving continuous adverse possession nothing must be left to mere conjecture. The testimony must tend to prove the continuity of possession for the statutory period, either in plain terms or by necessary implication. Ruffin v. Overby, 105 N.C. 78, 11 S.E. 251 (1890).

The reason for the rule of continuity is that at all times there is a presumption in favor of the true owner, and he is deemed by law to have possession coextensive with his title except during the periods he is actually ousted by the personal occupation of another, so that whenever the occupation of another actually ceases, the title again draws to it the possession, and the seizin of the owner is restored. A subsequent entry even by the same wrongdoer and under the same claim of title constitutes a new disseizin from the date of which the statute takes a fresh start. Malloy v. Bruden, 86 N.C. 251 (1882).

Occasional Entries Are Not Sufficient. - To claim adverse possession, there must be a continuous possession of public notoriety. Occasional entries upon the land will not serve, for they may not be observed, or if observed, they may not be considered as the assertion of rights. Price v. Tomrich Corp., 275 N.C. 385, 167 S.E.2d 766 (1969).

Adverse possession is denoted by the exercise of acts of dominion over the land in making the ordinary use and taking the ordinary profits of which it is susceptible, such acts to be so repeated as to show that they are done in the character of owner, and not merely as an occasional trespasser. Price v. Tomrich Corp., 275 N.C. 385, 167 S.E.2d 766 (1969).

Occasional trespasses are not sufficient, for the possession must be of such character as to continually expose the party to suit by the true owner. Alexander v. Richmond Cedar Works, 177 N.C. 137, 98 S.E. 312, petition for new trial dismissed, 177 N.C. 536, 98 S.E. 780 (1919).

It is not to be understood that possession is interfered with sufficiently to defeat title by the causal entry of a trespasser. Hayes v. Williamson-Brown Lumber Co., 180 N.C. 252, 104 S.E. 527 (1920).

But Occupation and Use Need Not Be Unceasing. - Whereas the occupation and use by the adverse claimant must be continuous, it need not be unceasing. Helton v. Cook, 27 N.C. App. 565, 219 S.E.2d 505 (1975), cert. denied, 289 N.C. 297, 222 S.E.2d 697 (1976).

Time Gaps Held to Destroy Continuity. - A gap occurring during the period of a suspension of the statute is sufficient to destroy the continuity. Malloy v. Bruden, 86 N.C. 251 (1881).

An intervening period of five months was a sufficient interval to defeat adverse possession. Holdfast v. Shepard, 28 N.C. 361 (1846).

An intervening period of one year was sufficient to defeat title by adverse possession. Ward v. Herrin, 49 N.C. 23 (1856); Malloy v. Bruden, 86 N.C. 251 (1882).

Continuity May Be Shown by Tacking Where Privity Exists. - In order to fulfill requirements as to continuity of possession, it is not necessary that an adverse possession be maintained for the entire statutory period by one person. Continuity may be shown by the tacking of successive possessions of two or more persons between whom the requisite privity exists. The privity referred to is only that of possession and may be said to exist whenever one holds the property under or for another or in subordination to his claim and under an agreement or arrangement recognized as valid between themselves. Newkirk v. Porter, 237 N.C. 115, 74 S.E.2d 235 (1953).

It is not necessary that the adverse claimant hold possession for the statutory period, provided he can establish a privity in claim, possession, etc., with the prior possessors which, when taken together, will constitute the period of time necessary to give title. Campbell v. Everhart, 139 N.C. 503, 52 S.E. 201 (1905).

And several successive possessions may be tacked to show continuous adverse possession where there is privity of estate or connection of title between several successive occupants. Scott v. Lewis, 246 N.C. 298, 98 S.E.2d 294 (1957).

Privity means privity of possession and not privity in blood. Trustees of Univ. v. Blount, 4 N.C. 455 (1816); Alexander v. Gibbon, 118 N.C. 796, 24 S.E. 748 (1896); Barrett v. Brewer, 153 N.C. 547, 69 S.E. 614 (1910).

Reason for Privity Requirement. - Privity is necessary where the claimant has not had possession for the statutory period, for he cannot derive any benefit from the possession of a third party, or of others claiming under the third party, where he fails to connect himself with such third party's title. Johnston v. Case, 131 N.C. 491, 42 S.E. 957 (1902), modified on rehearing, 132 N.C. 795, 44 S.E. 617 (1903).

Rule of privity applies alike to adverse possession against State and private individuals, whether with or without color of title. Johnston v. Case, 131 N.C. 491, 42 S.E. 957 (1902), modified on rehearing, 132 N.C. 795, 44 S.E. 617 (1903); May v. Manufacturing & Trading Co., 164 N.C. 262, 80 S.E. 380 (1913).

Possession of Grantor or Ancestor May Be Tacked. - A grantee claiming land within the boundaries called for in the deed or other instrument constituting color of title may tack his grantor's possession of such land to his own for the purpose of establishing adverse possession for the requisite statutory period. Similarly, the adverse possession of an ancestor may be cast by descent upon his heirs and tacked to their possession for the purpose of showing title by adverse possession. Newkirk v. Porter, 237 N.C. 115, 74 S.E.2d 235 (1953).

But a deed does not of itself create privity between grantor and grantee as to land not described in the deed but occupied by the grantor in connection therewith, even though grantee enters into possession of the land not described and uses it in connection with that conveyed. Newkirk v. Porter, 237 N.C. 115, 74 S.E.2d 235 (1953).

Where claimant is holding possession under color of title, he cannot tack his possession of land not covered by his color to the possession of his grantor. Blackstock v. Cole, 51 N.C. 560 (1859); Jennings v. White, 139 N.C. 23, 51 S.E. 799 (1905).

Possession of a grantor who had no color of title cannot be tacked to that of his grantee in order to make up the seven years' possession under color of title as required by this section. Morrison v. Craven, 120 N.C. 327, 26 S.E. 940 (1897).

A widow may tack her possession to that of her husband where she immediately possesses the property as a part of her homestead or dower. Atwell v. Shook, 133 N.C. 387, 45 S.E. 777 (1903); Jacobs v. Williams, 173 N.C. 276, 91 S.E. 951 (1917).

Possession by the legal representative is a continuation of deceased's possession. Trustees of Univ. v. Blount, 4 N.C. 455 (1816).

Possession of a tenant is the possession of the landlord and is to be added to that of the landlord in person. Alexander v. Gibbon, 118 N.C. 796, 24 S.E. 748 (1896).

Tacking Not Permitted. - Where heir went into adverse possession of a tract of land, but ancestor died before such possession had been held for 20 years, such possession prior to the ancestor's death could not be tacked to the heir's possession subsequent to the ancestor's death, and such heir's possession for less than 20 years subsequent to the ancestor's death did not ripen title in him. Wilson v. Wilson, 237 N.C. 266, 74 S.E.2d 704 (1953).

The fact that the plaintiff admitted that she never actually possessed the property at issue was fatal to her claim of adverse possession, notwithstanding her contention that she should be able to tack onto the possession of her direct ancestors. Merrick v. Peterson, 143 N.C. App. 656, 548 S.E.2d 171 (2001).

Where parties brought action for the recovery of land as heirs at law of their ancestor, and judgment was rendered adverse to them, such judgment adjudicated want of title in their ancestor and was binding upon them, and they could not in a subsequent action in which they asserted title by adverse possession tack the possession of their ancestor or contend that their separate acts of ownership were done in the character of heirs at law claiming under known and definite boundaries. Scott v. Lewis, 246 N.C. 298, 98 S.E.2d 294 (1957).

Where the purchase was of part of a tract of land, the vendee's possession would not inure to the benefit of the vendor as to the remainder of the tract for the purpose of showing possession of the tract by the vendor. Price v. Tomrich Corp., 275 N.C. 385, 167 S.E.2d 766 (1969).

Adverse Possession Not Interrupted by Occasional Entries. - The occasional going onto the property by one of the plaintiffs, claiming title to the property under a will, to cut a Christmas tree or to rake pinestraw for a dog house, did not interrupt continued adverse possession by defendants and their predecessors in title. Stone v. Conder, 46 N.C. App. 190, 264 S.E.2d 760 (1980).

Effect of Voluntary Dismissal of Torrens Proceeding. - Effect of plaintiffs' voluntary dismissal of Torrens proceeding was to toll the limitations period on defendants' adverse claim to the disputed property for the subsequent 12 months; when plaintiffs failed to bring a new action within that period, however, the limitations period continued to run from the point at which it had been tolled. Willis v. Mann, 96 N.C. App. 450, 386 S.E.2d 68 (1989), cert. denied, 326 N.C. 367, 389 S.E.2d 820 (1990).

Clear Indicators of Open, Notorious, and Exclusive Possession of Lands by Government. - Summary judgment was appropriate under G.S. 1-38(a) as marked lines, marked corners, road construction, timber cuttings, road maintenance, and activities related thereto, were clear indicators of open, notorious and exclusive possession of the lands by the government and these activities and undisputed boundary markings and monumentations existed for a minimum period of 19 plus years, or a minimum period of 14 years. United States v. Kubalak, 365 F. Supp. 2d 677 (W.D.N.C. Apr. 15, 2005).

V. BOUNDARIES OF LAND POSSESSED.

.

Editor's Note. - The case of Walls v. Grohman, 315 N.C. 239, 337 S.E.2d 556 (1985), annotated below, overruled Price v. Whismant, 236 N.C. 381, 72 S.E.2d 851 (1952); Gibson v. Dudley, 233 N.C. 255, 63 S.E.2d 630 (1951); Sipe v. Blankenship, 37 N.C. App. 499, 246 S.E.2d 527 (1978), cert. denied, 296 N.C. 411, 251 S.E.2d 470 (1979); and Garris v. Butler, 15 N.C. App. 268, 189 S.E.2d 809 (1972) to the extent that they applied a different rule.

Possession Must Be Actual. - There can be no adverse possession without an actual possession of the locus in quo. Cutler v. Blackman, 4 N.C. 368 (1816).

No constructive possession will ripen into good title. Williams v. Wallace, 78 N.C. 354 (1878).

Possession Must Be Under Known and Visible Boundaries. - A party claiming under adverse possession must show possession under known and visible boundaries. Barringer v. Weathington, 11 N.C. App. 618, 182 S.E.2d 239 (1971).

Adverse possession must be possession under known and visible lines and boundaries, and under colorable title. Berry v. Coppersmith, 212 N.C. 50, 193 S.E. 3 (1937).

So as to Show Extent of Possession Claimed. - There must be known and visible boundaries such as may apprise the true owner and the world of the extent of the possession claimed. Barfield v. Hill, 163 N.C. 262, 79 S.E. 677 (1913); McDaris v. Breit Bar "T" Corp., 265 N.C. 298, 144 S.E.2d 59 (1965).

Possession Extended to Outer Bounds of Deed Where Land Is Held Under Colorable Title. - Where one enters into possession of land under a colorable title which describes the land by definite lines and boundaries, and occupies and holds adversely a portion of the land within the bounds of his deed, by construction of law his possession is extended to the outer bounds of his deed, and possession so held adversely for seven years ripens his title to all the land embraced in his deed which is not actually occupied by another. Vance v. Guy, 223 N.C. 409, 27 S.E.2d 117 (1943); Wachovia Bank & Trust Co. v. Miller, 243 N.C. 1, 89 S.E.2d 765 (1955).

Where one, or his predecessor in title, enters upon land and asserts ownership of the whole under an instrument constituting color of title, the law will extend his occupation of a portion of the land to the outer bounds of his deed. Cobb v. Spurlin, 73 N.C. App. 560, 327 S.E.2d 244 (1985).

Provided That No Part of Premises Is Held Adversely by Another. - When one enters upon a tract of land and asserts his ownership of the whole under an instrument which constitutes color of title, the law will extend his occupation of a portion thereof to the outer bounds of his deed, provided that no part of the premises is held adversely by another. His exclusive possession, if continued uninterruptedly for seven years, will ripen title to all the land embraced within the deed. Price v. Tomrich Corp., 275 N.C. 385, 167 S.E.2d 766 (1969); Willis v. Johns, 55 N.C. App. 621, 286 S.E.2d 646 (1982).

Possession Not Extended to Other Tracts Conveyed by Separate Descriptions. - When one enters into possession under colorable title which describes the land by definite lines and boundaries, his possession is extended, by operation of law, to the outer boundaries of his deed. But where two or more adjoining tracts of land are conveyed in one deed, or in separate deeds, by separate and distinct descriptions, the actual possession by grantee of one of the tracts for seven years is not constructively extended to the other tract or tracts so as to ripen title thereto by adverse possession. Morehead v. Harris, 262 N.C. 330, 137 S.E.2d 174 (1964).

Possession of a single tract is not constructively extended to a separate and distinct tract even though both tracts are described in the same conveyance. Bowers v. Mitchell, 258 N.C. 80, 128 S.E.2d 6 (1962).

Nor to Additional Land in Subsequent Deeds in Chain of Title. - Where description in a deed from a common source of title is enlarged in descriptions in subsequent deeds in the chain of title, the party claiming the additional land by adverse possession under color of title must show actual possession of the additional land, since possession under the deed from the common source could not be constructively extended to include the additional land. Bumgarner v. Corpening, 246 N.C. 40, 97 S.E.2d 427 (1957).

Actual possession of one tract cannot be constructively extended to an adjoining tract. Phipps v. Paley, 90 N.C. App. 170, 368 S.E.2d 21, cert. denied, 323 N.C. 175, 373 S.E.2d 114 (1988).

Where the title deeds of two rival claimants lap upon each other, and neither claimant is in actual possession of any of the land covered by both deeds, the law adjudges the possession of the lappage to be in the one who has the better title. If one is seated on the lappage and the other is not, the possession of the whole interference is in the former. If both have actual possession of some part of the lappage, the possession of the true owner, by virtue of his superior title, extends to all not actually occupied by the other. Vance v. Guy, 224 N.C. 607, 31 S.E.2d 766 (1944); Price v. Tomrich Corp., 275 N.C. 385, 167 S.E.2d 766 (1969). See also, Whiteheart v. Grubbs, 232 N.C. 236, 60 S.E.2d 101 (1950).

When a portion of a boundary of a junior grant laps on a superior title, to mature a title under the junior grant there must be shown adverse and exclusive possession of the lappage, or the law will presume possession to be in the true owner as to all that portion of the lappage not actually occupied by the junior claimant. Price v. Tomrich Corp., 275 N.C. 385, 167 S.E.2d 766 (1969).

When a junior grant incorporates a portion of a senior grant it is not necessary for the junior grantee claiming title by seven years' adverse possession under color to show that the boundaries of the lappage were visible on the ground, although the claimant must establish the required adverse possession within those lines. Price v. Tomrich Corp., 275 N.C. 385, 167 S.E.2d 766 (1969); Allen v. Morgan, 48 N.C. App. 706, 269 S.E.2d 753 (1980).

When a landowner, acting under a mistake as to the true boundary between his property and that of another, takes possession of land believing it to be his own and claims title thereto, his possession and claim of title is adverse. If such adverse possession meets all other requirements and continues for the requisite statutory period, the claimant acquires title by adverse possession even though the claim of title is founded on a mistake. Walls v. Grohman, 315 N.C. 239, 337 S.E.2d 556 (1985).

The case of Walls v. Grohman, 315 N.C. 239, 337 S.E.2d 556 (1985), holding that when one, acting under a mistake as to the true boundary between his property and that of another, takes possession of the land believing it to be his own, his possession is adverse, would be applied to a case which was pending on appeal when the decision was announced. Fauchette v. Zimmerman, 79 N.C. App. 265, 338 S.E.2d 804 (1986).

No Evidence of Bad Faith. - Where there was no evidence and no claim by plaintiffs that defendants exchanged their deeds in bad faith, defendants' deeds were color of title. Willis v. Mann, 96 N.C. App. 450, 386 S.E.2d 68 (1989), cert. denied, 326 N.C. 367, 389 S.E.2d 820 (1990).

VI. COLOR OF TITLE.

.

A. IN GENERAL.

.

Adverse possession, to ripen into title after seven years, must be under color of title; otherwise a period of 20 years is required under G.S. 1-40. Justice v. Mitchell, 238 N.C. 364, 78 S.E.2d 122 (1953); Williams v. Weyerhaeuser Co., 378 F.2d 7 (4th Cir. 1967); Taylor v. Brittain, 76 N.C. App. 574, 334 S.E.2d 242 (1985), modified and aff'd, 317 N.C. 146, 343 S.E.2d 536 (1986).

The possession has to be under color of title. United States v. Chatham, 208 F. Supp. 220 (W.D.N.C. 1962), aff'd in part and rev'd in part, 323 F.2d 95 (4th Cir. 1963).

One can acquire a prescriptive easement by adverse use for seven years under color of title pursuant to this section. Higdon v. Davis, 71 N.C. App. 640, 324 S.E.2d 5 (1984), rev'd on other grounds, 315 N.C. 208, 337 S.E.2d 543 (1985).

In those cases where the other elements of prescription are present, adverse possession of an easement under written color of title for seven years shall give title to the easement by prescription. Higdon v. Davis, 71 N.C. App. 640, 324 S.E.2d 5 (1984), rev'd on other grounds, 315 N.C. 208, 337 S.E.2d 543 (1985).

Trial court improperly granted summary judgment to defendants, adjoining property owners and a water company, under G.S. 1A-1-56, holding that they held an underground easement for a waterline on plaintiff property owner's land because, inter alia: (1) defendants did not satisfy the requisite period for an easement by prescription and were not entitled to rely upon the shorter period provided by the doctrine of color of title, which would have reduced the period of adverse possession from 20 to seven years under G.S. 1-38(a); and (2) defendants failed to forecast sufficient evidence that they were entitled to an easement by estoppel. Woodring v. Swieter, 180 N.C. App. 362, 637 S.E.2d 269 (2006).

When Title Is Out of State. - When title to land is out of the State, seven years' adverse possession under color of title is sufficient to ripen title in ordinary cases. Virginia-Carolina Tie & Wood Co. v. Dunbar, 106 F.2d 383 (4th Cir. 1939).

Title is deemed to be out of the State where the State is not a party to the action. Duke Power Co. v. Toms, 118 F.2d 443 (4th Cir. 1941).

Plaintiff may show title out of the State by offering a grant to a stranger, without connecting himself with it, and then offer proof of open, notorious, continuous adverse possession, under color of title in himself and those under whom he claims, for seven years before the action was brought. Blair v. Miller, 13 N.C. 407 (1830); Isler v. Dewey, 84 N.C. 345 (1881); Christenbury v. King, 85 N.C. 229 (1881); Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142 (1889).

Color of Title Defined. - Color of title is a paper writing which purports to convey land but fails to do so. First-Citizens Bank & Trust Co. v. Parker, 235 N.C. 326, 69 S.E.2d 841 (1952); Carrow v. Davis, 248 N.C. 740, 105 S.E.2d 60 (1958).

Color of title is generally defined as a written instrument which purports to convey the land described therein but fails to do so because of a want of title in the grantor or some defect in the mode of conveyance. Price v. Tomrich Corp., 275 N.C. 385, 167 S.E.2d 766 (1969); Hensley v. Ramsey, 283 N.C. 714, 199 S.E.2d 1 (1973); Adams v. Severt, 40 N.C. App. 247, 252 S.E.2d 276 (1979); General Greene Inv. Co. v. Greene, 48 N.C. App. 29, 268 S.E.2d 810, cert. denied, 301 N.C. 235, 283 S.E.2d 132 (1980).

Color of title is generally defined as a written instrument which purports to convey the land described in the written instrument, but fails to do so because of (1) want of title in the grantor, or (2) some defect in the mode of conveyance. If these defects do not exist, title is actually passed by the instrument and there can be no color of title. Higdon v. Davis, 71 N.C. App. 640, 324 S.E.2d 5 (1984), rev'd on other grounds, 315 N.C. 208, 337 S.E.2d 543 (1985).

Adverse possession under color of title is occupancy under a writing that purports to pass title to the occupant but which does not actually do so either because the person executing the writing fails to have title or capacity to transfer the title or because of the defective mode of the conveyance used. Cobb v. Spurlin, 73 N.C. App. 560, 327 S.E.2d 244 (1985).

An instrument is nonetheless color of title because of defects discoverable from the record, the purport of this section being to afford protection to apparent titles, void in law, and to supply a defense where none existed without its aid. Perry v. Bassenger, 219 N.C. 838, 15 S.E.2d 365 (1941).

If an instrument on its face purports to convey land by definite lines and boundaries and the grantee enters into possession claiming under it and holds adversely for seven years, it is sufficient to vest title to the land in the grantee. No exclusive importance is to be attached to the ground of the invalidity of the colorable title if entry thereunder has been made in good faith and possession held adversely. Though the grantor may have been incompetent to convey the true title or the form of conveyance may be defective, it will constitute color of title which will draw to the possession of the grantee thereunder the protection of the statute. First-Citizens Bank & Trust Co. v. Parker, 235 N.C. 326, 69 S.E.2d 841 (1952); Johnson v. McLamb, 247 N.C. 534, 101 S.E.2d 311 (1958).

If an instrument actually passes the title, it is not color of title. Hensley v. Ramsey, 283 N.C. 714, 199 S.E.2d 1 (1973).

A deed is color of title. King v. Lee, 9 N.C. App. 369, 176 S.E.2d 394 (1970), modified on other grounds, 279 N.C. 100, 181 S.E.2d 400 (1971).

But Good Faith Required. - In order for a deed to constitute color of title, the grantee must enter the land under the deed in good faith. State v. Taylor, 60 N.C. App. 673, 300 S.E.2d 42, appeal dismissed and cert. denied, 308 N.C. 547, 303 S.E.2d 823 (1983), appeal dismissed, 465 U.S. 1075, 104 S. Ct. 1432, 79 L. Ed. 2d 756 (1984).

Exchange of deeds cannot constitute color of title. State v. Taylor, 60 N.C. App. 673, 300 S.E.2d 42, appeal dismissed and cert. denied, 308 N.C. 547, 303 S.E.2d 823 (1983), appeal dismissed, 465 U.S. 1075, 104 S. Ct. 1432, 79 L. Ed. 2d 756 (1984).

Color of title is not sufficient to make a prima facie case of title. Cothran v. Akers Motor Lines, 257 N.C. 782, 127 S.E.2d 578 (1962); King v. Lee, 9 N.C. App. 369, 176 S.E.2d 394 (1970), modified on other grounds, 279 N.C. 100, 181 S.E.2d 400 (1971).

The color of title must be strengthened by possession, which must be open, notorious, and adverse for a period of seven years. Cothran v. Akers Motor Lines, 257 N.C. 782, 127 S.E.2d 578 (1962); King v. Lee, 9 N.C. App. 369, 176 S.E.2d 394 (1970), modified on other grounds, 279 N.C. 100, 181 S.E.2d 400 (1971).

Color of Title Affords No Protection Where Requisites of Adverse Possession Are Not Present. - A deed which is color of title does not draw to the grantee-occupant of the land described therein the protection of the statute of limitations where the requisites of adverse possession are not present. Morehead v. Harris, 262 N.C. 330, 137 S.E.2d 174 (1964).

A deed which is color of title without adverse possession does not afford the grantee protection of the statute. Taylor v. Brittain, 76 N.C. App. 574, 334 S.E.2d 242 (1985), modified and aff'd, 317 N.C. 146, 343 S.E.2d 536 (1986).

Actual Possession of Part of Land. - When a person claims ownership through color of title, as long as that person has some actual possession of a part of the land, he or she is deemed the constructive possessor of the remainder of the land described in the instrument constituting color of title. Taylor v. Brittain, 76 N.C. App. 574, 334 S.E.2d 242 (1985), modified and aff'd, 317 N.C. 146, 343 S.E.2d 536 (1986).

To constitute color of title a deed must contain a description identifying the land or referring to something that will identify it with certainty. McDaris v. Breit Bar "T" Corp., 265 N.C. 298, 144 S.E.2d 59 (1965).

A deed offered as color of title is such only for the land designated and described in it. Davidson v. Arledge, 88 N.C. 326 (1883); Smith v. Fite, 92 N.C. 319 (1885); Barker v. Southern Ry., 125 N.C. 596, 34 S.E. 701 (1899); Johnston v. Case, 131 N.C. 491, 42 S.E. 957 (1902), modified on rehearing, 132 N.C. 795, 44 S.E. 617 (1903); Smith v. Benson, 227 N.C. 56, 40 S.E.2d 451 (1946); Locklear v. Oxendine, 233 N.C. 710, 65 S.E.2d 673 (1951); Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692 (1952); Powell v. Mills, 237 N.C. 582, 75 S.E.2d 759 (1953); Norman v. Williams, 241 N.C. 732, 86 S.E.2d 593 (1955); McDaris v. Breit Bar "T" Corp., 265 N.C. 298, 144 S.E.2d 59 (1965); Sipe v. Blankenship, 37 N.C. App. 499, 246 S.E.2d 527 (1978), cert. denied, 296 N.C. 411, 251 S.E.2d 470 (1979); Phipps v. Paley, 90 N.C. App. 170, 368 S.E.2d 21, cert. denied, 323 N.C. 175, 373 S.E.2d 114 (1988); Rudisill v. Icenhour, 92 N.C. App. 741, 375 S.E.2d 682 (1989).

And the description in the deed must by proof be made to fit the land it covers. Smith v. Fite, 92 N.C. 319 (1885); Smith v. Benson, 227 N.C. 56, 40 S.E.2d 451 (1946); Locklear v. Oxendine, 233 N.C. 710, 65 S.E.2d 673 (1951); Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692 (1952); Powell v. Mills, 237 N.C. 582, 75 S.E.2d 759 (1953); McDaris v. Breit Bar "T" Corp., 265 N.C. 298, 144 S.E.2d 59 (1965).

Deed Which Fails to Identify Land Conveyed Cannot Be Color of Title. - A deed which is inoperative because the land intended to be conveyed thereby is incapable of identification from the description therein is inoperative as color of title. Dickens v. Barnes, 79 N.C. 490 (1878); Barker v. Southern Ry., 125 N.C. 596, 34 S.E. 701 (1899); Fincannon v. Sudderth, 144 N.C. 587, 57 S.E. 337 (1907); Katz v. Daughtrey, 198 N.C. 393, 151 S.E. 879 (1930); Thomas v. Hipp, 223 N.C. 515, 27 S.E.2d 528 (1943); Powell v. Mills, 237 N.C. 582, 75 S.E.2d 759 (1953); Carrow v. Davis, 248 N.C. 740, 105 S.E.2d 60 (1958).

Deed Must Be Shown to Cover Land in Dispute. - Where a party introduces into evidence a deed which he intends to use as color of title, he must prove that its boundaries cover the land in dispute. It is error to allow a jury, on no evidence, to locate the land described in a deed. Stuart v. Bryant, 40 N.C. App. 206, 252 S.E.2d 286 (1979).

Proof Required Where Commissioner's Deed Used as Color. - While a commissioner's deed in a judicial sale constitutes color of title, a party who uses a deed to establish color of title must prove that the boundaries in the deed cover the land in dispute. Willis v. Johns, 55 N.C. App. 621, 286 S.E.2d 646 (1982).

Where jury determined that defendants' deed did not embrace disputed area, defendants could not contend that they obtained title to the disputed area by adverse possession for seven years under color of title under this section. Sipe v. Blankenship, 37 N.C. App. 499, 246 S.E.2d 527 (1978), cert. denied, 296 N.C. 411, 251 S.E.2d 470 (1979).

Color of Title Does Not Relate Back to Time of Entry. - Though a person originally entering without color of title may on subsequent acquisition of color be deemed to have held adversely under color from the latter date, still his color of title does not relate back to the time of his entry. Justice v. Mitchell, 238 N.C. 364, 78 S.E.2d 122 (1953).

This section is applicable to prescriptive easements. Higdon v. Davis, 71 N.C. App. 640, 324 S.E.2d 5 (1984), rev'd on other grounds, 315 N.C. 208, 337 S.E.2d 543 (1985).

The doctrine of color of title is applicable to acquisition of title to an easement by prescription. Higdon v. Davis, 71 N.C. App. 640, 324 S.E.2d 5 (1984), rev'd on other grounds, 315 N.C. 208, 337 S.E.2d 543 (1985).

The period for acquiring an easement by prescription is now seven years where the claim is under color of title pursuant to this section. The burden is on defendants to show that they used the easement more or less frequently according to the nature of the easement and that they used the easement for seven years. Higdon v. Davis, 71 N.C. App. 640, 324 S.E.2d 5 (1984), rev'd on other grounds, 315 N.C. 208, 337 S.E.2d 543 (1985).

Where one can acquire fee simple title to the greater interest under color of title pursuant to this section, common sense dictates that, in the absence of statutes to the contrary, one should also be able to acquire title to easements appurtenant to that interest in the same statutory period. To hold otherwise would require the grantee to wait 20 years to gain title to an easement he had bargained for in the deed from his grantor, when he would be required to wait only seven years for the real property itself, if the grantor had not in fact had title to convey. This is not logically consistent and would produce harsh results. Higdon v. Davis, 71 N.C. App. 640, 324 S.E.2d 5 (1984), rev'd on other grounds, 315 N.C. 208, 337 S.E.2d 543 (1985).

As to color of title generally, see also Neal v. Nelson, 117 N.C. 393, 23 S.E. 428 (1895); Smith v. Proctor, 139 N.C. 314, 51 S.E. 889 (1905); Norwood v. Totten, 166 N.C. 648, 82 S.E. 951 (1914); Whitten v. Peace, 188 N.C. 298, 124 S.E. 571 (1924); Best v. Utley, 189 N.C. 356, 127 S.E. 337 (1925); Barbee v. Bumpass, 191 N.C. 521, 132 S.E. 275 (1926); Garner v. Horner, 191 N.C. 539, 132 S.E. 290 (1926); Booth v. Hairston, 193 N.C. 278, 136 S.E. 879 (1927), petition for rehearing dismissed, 195 N.C. 8, 141 S.E. 480 (1928); Ennis v. Ennis, 195 N.C. 320, 142 S.E. 8 (1928); Stuart v. Bryant, 40 N.C. App. 206, 252 S.E.2d 286 (1979).

Genuine Issue of Material Fact As to Intent. - Trial court erred in entering summary judgment in favor of a grantor because there was a genuine issue of material fact as to whether a notary and her husband acquired title to the property by adverse possession under color of title; the subjective intent of the notary and her husband was a genuine issue of material fact, and the issue of adverse possession could not be answered without consideration of their intent. Quinn v. Quinn, 243 N.C. App. 374, 777 S.E.2d 121 (2015).

B. DOCUMENTS HELD TO BE COLOR OF TITLE.

.

Limitations Period. - Brother's claim challenging the sister's possession of their deceased mother's real property was subject to the G.S. 1-38 limitations period rather than a 20-year period under G.S. 1-40 where a deed to the sister passed the appearance of color of title. Honeycutt v. Weaver, 257 N.C. App. 599, 812 S.E.2d 859 (2018).

Deed Regular upon Its Face. - Where deed was regular upon its face and purported to convey title without limitation, reservation or exception, it was at least color of title to the entire interest in the land it purported to convey, so that grantee and those claiming under her, who immediately went into possession and remained in exclusive possession thereof for 12 or 15 years, acquired title by their adverse possession under color, if not by their deed. Lofton v. Barber, 226 N.C. 481, 39 S.E.2d 263 (1946).

Deed When Person Does Not Have Title. - A color-of-title situation can arise when the person executing the writing does not actually have title. A deed may constitute color of title for the land therein described. Taylor v. Brittain, 76 N.C. App. 574, 334 S.E.2d 242 (1985), modified and aff'd, 317 N.C. 146, 343 S.E.2d 536 (1986).

Fraudulent Deed. - A fraudulent deed may be color of title and become a good title if the fraudulent grantee holds actual adverse possession for the statutory period against the owner. First-Citizens Bank & Trust Co. v. Parker, 235 N.C. 326, 69 S.E.2d 841 (1952); Johnson v. McLamb, 247 N.C. 534, 101 S.E.2d 311 (1958).

Void Deed. - A void deed constitutes color of title. Bond v. Beverly, 152 N.C. 56, 67 S.E. 55 (1910). See also, Potts v. Payne, 200 N.C. 246, 156 S.E. 499 (1931).

Voidable Deed. - A voidable deed is sufficient color, although it is a distinct and separate source of title from the one under which entry was first made. Butler v. Bell, 181 N.C. 85, 106 S.E. 217 (1921).

Valid Deed. - A valid deed - a muniment of title - may also serve as color of title. Price v. Tomrich Corp., 275 N.C. 385, 167 S.E.2d 766 (1969); Hensley v. Ramsey, 283 N.C. 714, 199 S.E.2d 1 (1973).

Deed Describing Contiguous Land Not Owned by Vendor. - When the description in a deed embraces not only land owned by the grantor, but also contiguous land which he does not own, the instrument conveys the property to which grantor had title and constitutes color of title to that portion which he does not own. Price v. Tomrich Corp., 275 N.C. 385, 167 S.E.2d 766 (1969).

Champertous Deed. - Regardless of whether a deed which conveyed to grantor's son certain described lands, reserving to grantor and his wife a life estate, given in consideration of grantee's successfully maintaining a suit to clear title to the lands conveyed, was champertous, it was sufficient color of title after registration and after the falling in of the reserved life estate to ripen the title in grantee under this section. Ennis v. Ennis, 195 N.C. 320, 142 S.E. 8 (1928).

Registered Deed Where Grantor Therein Held Under Unregistered Deed. - While an unregistered deed is not color of title as against subsequent grantees under registered deeds and creditors of the grantor, where the grantee in the unregistered deed conveyed by registered deed, and mesne conveyances from him were duly registered, such registered deeds were color of title under this section, and where the land was held by actual possession successively by the grantees in such chain of title continuously for over seven years prior to the filing of a judgment against the grantor in the unrestricted deed, the grantor in the unregistered deed was divested of title by adverse possession prior to the filing of the judgment, and the judgment did not constitute a lien against the land. Glass v. Lynchburg Shoe Co., 212 N.C. 70, 192 S.E. 899 (1937).

Deed from Purchase of Land at Mortgage Foreclosure Sale. - A deed obtained from the purchase of land at a mortgage foreclosure sale constitutes color of title, even though the foreclosure sale is defective or void. Scott Poultry Co. v. Bryan Oil Co., 272 N.C. 16, 157 S.E.2d 693 (1967).

Deed of Person Non Compos. - The deed of a person non compos is color of title, and possession under it for seven years ripens into title against those not under disability. Ellington v. Ellington, 103 N.C. 54, 9 S.E. 208 (1889).

Commissioner's Deed. - Where land devised to testator's children with remainder to testator's grandchildren was sold under order of court by a commissioner to one of the life tenants, and defendants were the purchasers by mesne conveyances from the life tenant, the deed executed by the commissioner, being similar to a deed from a stranger, constituted color of title. Perry v. Bassenger, 219 N.C. 838, 15 S.E.2d 365 (1941).

Commissioner's deed in tax foreclosure proceedings instituted against one tenant in common was color of title as against the cotenants who were not parties to the foreclosure. Johnson v. McLamb, 247 N.C. 534, 101 S.E.2d 311 (1958).

Sheriff's Deed After Judgment Against Nonresident. - A sheriff's deed at an execution sale under a judgment obtained against nonresident owner by his wife to recover for maintenance and necessaries furnished by her to their minor children, in which action attachment was levied on the land, was at least color of title under this section, the judgment not being void. Campbell v. Campbell, 221 N.C. 257, 20 S.E.2d 53 (1942).

Deed Made in Defective Partition Proceedings. - Where, in a partition proceeding to sell land, less than the whole number of tenants in common were made parties, a deed made pursuant to an order of court to the purchaser was color of title and seven years adverse possession thereunder would bar those tenants in common who were not made parties. First-Citizens Bank & Trust Co. v. Parker, 235 N.C. 326, 69 S.E.2d 841 (1952); Johnson v. McLamb, 247 N.C. 534, 101 S.E.2d 311 (1958).

Where a sale was made pursuant to court order in a partition proceeding, and some of the cotenants are not parties, or there is an actual partition among those parties, the deed or the decree of partition is not the act of a cotenant, but is the act of a stranger, and seven years' possession under the deed or decree confirming the partition suffices to ripen title. Yow v. Armstrong, 260 N.C. 287, 132 S.E.2d 620 (1963).

Deed by grantee in deed of partition by heirs of the deceased owner to a third person of the land conveyed to the grantee in the partition was color of title within this section where the third person had no interest in the land outside of the deed. Betts v. Gahagan, 212 F. 120 (4th Cir. 1914).

Bond for Title. - After payment of the purchase money, a bond for title is color of title to support adverse possession even against the vendor. Avent v. Arrington, 105 N.C. 377, 10 S.E. 991 (1890); Betts v. Gahagan, 212 F. 120 (4th Cir. 1914).

Where a bond for title was unconditional and called for no future payment, the presumption, in the absence of any evidence to the contrary, was that the price was paid before or at the time of the signing, so that it was color of title to support adverse possession within this section. Betts v. Gahagan, 212 F. 120 (4th Cir. 1914).

Defectively Probated Will. - Where a will was defectively probated, but the defect in the probate was not so obvious that it might mislead a man of ordinary capacity, it was color of title for the land disposed of therein. Watson v. Chilton, 14 N.C. App. 7, 187 S.E.2d 482 (1972).

C. DOCUMENTS HELD NOT COLOR OF TITLE.

.

Deed by Mortgagor in Possession. - A deed by the mortgagor in possession to a third party, with notice of the mortgage, conveys only the equity of redemption, and does not pass such a colorable title as may ripen by possession into an absolute legal estate. Parker v. Banks, 79 N.C. 480 (1878).

Valid Deed. - A valid deed is not color of title. When one gives a deed for lands for a valuable consideration, and the grantee fails to register it, but enters into possession thereunder and remains therein for more than seven years, such deed does not constitute color of title. Justice v. Mitchell, 238 N.C. 364, 78 S.E.2d 122 (1953). But see, Price v. Tomrich Corp., 275 N.C. 385, 167 S.E.2d 766 (1969); Hensley v. Ramsey, 283 N.C. 714, 199 S.E.2d 1 (1973), cited above.

Fraudulent Deed. - Defendants' claim of adverse possession under color of title failed as they did not act in good faith in relying on a fraudulent deed executed by a former owner's heirs almost 13 years after the heirs, including defendants, lost all interest in the property. Adams Creek Assocs. v. Davis, 227 N.C. App. 457, 746 S.E.2d 1 (2013).

Unregistered Deed. - An unregistered deed ordinarily is not color of title, except as between the original parties. Johnson v. Fry, 195 N.C. 832, 143 S.E. 857 (1928).

An unregistered deed is not color of title as against judgment creditors of the grantor. Eaton v. Doub, 190 N.C. 14, 128 S.E. 494 (1925).

Where the probate of a deed to lands was fatally defective, it was not color of title against the grantor in a later registered deed, under sufficient probate, from a common grantee. McClure v. Crow, 196 N.C. 657, 146 S.E. 713 (1929).

Description in Deed. - The trial court did not err in granting summary judgment for defendants where plaintiffs could not prove that the deed upon which they relied contained an adequate description of the property. Foreman v. Sholl, 113 N.C. App. 282, 439 S.E.2d 169 (1994), cert. improvidently granted and appeal dismissed, 339 N.C. 593, 453 S.E.2d 162 (1995).

Property owner did not establish adverse possession of a disputed area under color of title because there remained unresolved factual issues of whether the metes-and-bounds description contained in the owner's deed and the incorporated reference to a survey accurately described the extent of the owner's property. Parker v. Desherbinin, - N.C. App. - , - S.E.2d - (Jan. 2, 2017).

Deed for Partition. - A deed by the heirs of a deceased owner of land for partition thereof was not color of title within this section. Betts v. Gahagan, 212 F. 120 (4th Cir. 1914).

VII. PROCEDURE AND PROOF.

.

As to this section being a proper plea in bar to action in ejectment under former practice, see Scott Poultry Co. v. Bryan Oil Co., 272 N.C. 16, 157 S.E.2d 693 (1967).

Statute of Limitations. - - Taking plaintiffs' claims as true and assuming there is any defect in the title to the trust property, property that the commission has maintained pursuant to the deed since at least 1996, plaintiffs' claims were barred by the statute of limitations. Asheville Lakeview Props., LLC v. Lake View Park Comm'n, Inc., 254 N.C. App. 348, 803 S.E.2d 632 (2017).

Defendants mooted their statute of limitations claim based on color of title where they acknowledged plaintiff held a perpetual easement right and had the right to maintain high-voltage power lines. Duke Energy Progress, Inc. v. Kane, 265 N.C. App. 1, 827 S.E.2d 312 (2019).

Generally speaking, a claim of title by adverse possession must be pleaded under North Carolina law. United States v. Chatham, 208 F. Supp. 220 (W.D.N.C. 1962), aff'd in part and rev'd in part, 323 F.2d 95 (4th Cir. 1963).

But This Applies Only When Adverse Possession Is Used as Defense. - The requirement that a claim of title by adverse possession must be pleaded applies only when adverse possession is set up as a defense to an action. United States v. Chatham, 208 F. Supp. 220 (W.D.N.C. 1962), aff'd in part and rev'd in part, 323 F.2d 95 (4th Cir. 1963).

And Not Where Claim Is Based on Adverse Possession Under Color of Title. - The requirement that a claim of adverse possession must be pleaded does not apply when a claim of title is based upon adverse possession under color of title. United States v. Chatham, 208 F. Supp. 220 (W.D.N.C. 1962), aff'd in part and rev'd in part, 323 F.2d 95 (4th Cir. 1963).

Methods of Proving Title. - Plaintiffs, in order to recover, had the burden of proving their title to the disputed area by any one of the various methods set out in Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142 (1889); Midgett v. Midgett, 5 N.C. App. 74, 168 S.E.2d 53 (1969).

The identity or location of the land may be shown by documentary evidence, such as plats, surveys and filed notes. A map made by a surveyor of the premises sued for and of other tracts, adjacent thereto, when proved to be correct, is admissible to illustrate other testimony in the case and throw light on the location of the land in controversy; and a draft of a survey, proved to be correct, is admissible in evidence as explanatory of what the surveyor testified he had done in making the survey. Midgett v. Midgett, 5 N.C. App. 74, 168 S.E.2d 53 (1969).

Nothing Must Be Left to Conjecture. - In proving title by continuous, open and adverse possession of land under color of title for seven years, nothing must be left to conjecture. Price v. Tomrich Corp., 275 N.C. 385, 167 S.E.2d 766 (1969).

Time Period. - In a partition action, a trial court erred in finding that appellees each owned title to parcels of land by adverse possession under color of title as they had not held the land for the 7-year prescriptive period under G.S. 1-38. There was not sufficient evidence to overcome the presumption that reciprocal deeds were delivered on the date on the face of the deeds as the uncontroverted evidence showed that at least 3 of the 7 grantors signed the deeds several months after that date; thus, the deeds could not have been delivered until they were signed by all of the grantors, which was less than 7 years prior to appellants instituting the present action. White v. Farabee, 212 N.C. App. 126, 713 S.E.2d 4 (2011).

Burden of Proof When Adverse Possession Is Claimed. - When the title is claimed by adverse possession, the burden is on him who relies upon such claim to show continuous possession. There is no presumption that the possession of real estate is adverse. Monk v. Wilmington, 137 N.C. 322, 49 S.E. 345 (1904); Bland v. Beasley, 145 N.C. 168, 58 S.E. 993 (1907).

The party claiming title by adverse possession has the burden of proof on that issue. Crisp v. Benfield, 64 N.C. App. 357, 307 S.E.2d 179 (1983).

Adverse Possession Is a Jury Question. - Conflicting evidence as to the character or extent of the possession under color of title by adverse possession raises the issue for the determination of the jury. Bumgarner v. Corpening, 246 N.C. 40, 97 S.E.2d 427 (1957).

Where plaintiff in an action to quiet title established a prima facie case, defendant's plea of title by adverse possession under color for seven years did not justify nonsuit of plaintiff's cause, since the plea of adverse possession raised an issue of fact for the jury upon which defendant had the burden of proof. Barbee v. Edwards, 238 N.C. 215, 77 S.E.2d 646 (1953).

Mere Admission of Possession Does Not Amount to Admission of Adverse Possession. - Plaintiff's admission that he gave a certain person possession more than seven years prior to the institution of the action did not justify nonsuit of plaintiff's cause of action to quiet title, since mere admission of possession, without evidence in respect to the nature or character of such possession, does not amount to an admission of adverse possession in law, even if defendant is given the benefit of presumptions arising from mesne conveyances from such person. Barbee v. Edwards, 238 N.C. 215, 77 S.E.2d 646 (1953).

Testimony Held Competent. - In an action to quiet title, fact that as a result of the impounding of water some of the boundaries were submerged and could not be located did not destroy value of testimony as to their location at the time of the adverse possession relied on, and it was clearly competent for a witness to testify that he knew the land described in the deed and the acts of possession occurring on that land. Duke Power Co. v. Toms, 118 F.2d 443 (4th Cir. 1941).

§ 1-39. Seizin within twenty years necessary.

No action for the recovery or possession of real property shall be maintained, unless it appears that the plaintiff, or those under whom he claims, was seized or possessed of the premises in question within 20 years before the commencement of the action, unless he was under the disabilities prescribed by law.

History

(C.C.P., s. 22; Code, s. 143; Rev., s. 383; C.S., s. 429.)

Legal Periodicals. - For note, "Walls v. Grohman: Adverse Possession in Mistaken Boundary Cases," see 64 N.C.L. Rev. 1496 (1986).

CASE NOTES

Section Not Retroactive. - This salutary provision did not extend to actions already commenced or rights of action already accrued at the ratification of the Code. Covington v. Stewart, 77 N.C. 148 (1877).

This section and G.S. 1-42 are to be construed together. Barbee v. Edwards, 238 N.C. 215, 77 S.E.2d 646 (1953); Elliott v. Goss, 250 N.C. 185, 108 S.E.2d 475 (1959); Campbell v. Mayberry, 12 N.C. App. 469, 183 S.E.2d 867, cert. denied, 279 N.C. 726, 184 S.E.2d 883 (1971); Stone v. Conder, 46 N.C. App. 190, 264 S.E.2d 760 (1980).

Presumption of Possession from Legal Title Under G.S. 1-42. - This section and G.S. 1-42 are to be construed together. When so construed, the rule is as follows: It is not necessary that a plaintiff in an action to recover land should allege in his complaint that he had possession within 20 years before action brought, for if he establishes on the trial a legal title to the premises, he will be presumed to have been possessed thereof within the time required by law, unless it is made to appear that such premises have been held and possessed adversely to such legal title for the time prescribed by law before the commencement of such action. Williams v. North Carolina State Bd. of Educ., 266 N.C. 761, 147 S.E.2d 381 (1966), commented on in 45 N.C.L. Rev. 964 (1967); Stone v. Conder, 46 N.C. App. 190, 264 S.E.2d 760 (1980). See also, Johnston v. Pate, 83 N.C. 110 (1880); Conkey v. John L. Roper Lumber Co., 126 N.C. 499, 36 S.E. 42 (1900).

In cases where there is no tenancy in common this section must be construed with G.S. 1-42, for this section is explained in G.S. 1-42 by the further declaration that the person who establishes a legal title to the premises shall be presumed to have been possessed thereof within the time required by law, etc. Conkey v. John L. Roper Lumber Co., 126 N.C. 499, 36 S.E. 42 (1900).

How Presumption of Possession Rebutted. - The pleading by a defendant of this section does not shift upon plaintiff the burden of showing that he has been in the possession 20 years before the commencement of the action; rather, the presumption created by G.S. 1-42 can only be rebutted by proof on the part of defendant that defendant had been in adverse possession of the premises for 20 years. Conkey v. John L. Roper Lumber Co., 126 N.C. 499, 36 S.E. 42 (1900).

Deed as Evidence of Possession. - The offer of a deed dated 1935, together with evidence identifying the land described therein, constituted prima facie evidence of plaintiff's possession of the described lands within the time required by law to maintain an action for recovery or possession of real property. Woodard v. Marshall, 14 N.C. App. 67, 187 S.E.2d 430 (1972).

Where one tenant in common claims sole seizin and adverse possession under a void judgment, his status as to any title by adverse possession must be determined by this section, rather than the seven-year statute, G.S. 1-38. Ange v. Owens, 224 N.C. 514, 31 S.E.2d 521 (1944).

Where plaintiffs acquired title by adverse possession under color for more than 30 years, they had at least constructive seizin or possession within 20 years before suit was brought, which would satisfy the requirement, as seizin follows the title, if there is no actual possession, and it was not incumbent on them to show an actual seizin or possession of the premises in question for 20 years before the commencement of the action. Bland v. Beasley, 145 N.C. 168, 58 S.E. 993 (1907); Stewart v. McCormick, 161 N.C. 625, 77 S.E. 761 (1913).

Notwithstanding the fact that a judgment was rendered against a party in an action to recover lands, if he subsequently entered, enclosed and used the lands for the statutory period he would acquire a new estate by disseizin and acquiescence and would be presumed to have been in possession within the past 20 years. Moore v. Curtis, 169 N.C. 74, 85 S.E. 132 (1915).

This section does not apply when plaintiffs have shown legal title and defendants' possession has not been for 20 continuous years. Bland v. Beasley, 145 N.C. 168, 58 S.E. 993 (1907).

Stipulation That Plaintiff Possessed Premises Does Not Concede That Plaintiff Has Good Title. - A defendant may stipulate that a plaintiff is entitled to prosecute his action to recover realty because he has been possessed of the premises in question within 20 years before the commencement of the action without conceding that the plaintiff has good title to the property or is presently entitled to possession. Campbell v. Mayberry, 12 N.C. App. 469, 183 S.E.2d 867, cert. denied, 279 N.C. 726, 184 S.E.2d 883 (1971).

Failure to Allege Seizin Not Ground for Demurrer. - In an action for possession of land, failure to affirmatively allege that plaintiff had been seized or possessed of the premises within 20 years prior to the institution of the action was not ground for demurrer. Elliott v. Goss, 250 N.C. 185, 108 S.E.2d 475 (1959).

State statutes of limitation neither bind nor have any application to the United States, when suing to enforce a public right or to protect interests of its Indian wards. United States v. 7,405.3 Acres of Land, 97 F.2d 417 (4th Cir. 1938).

Applied in Tripp v. Keais, 255 N.C. 404, 121 S.E.2d 596 (1961); Kennedy v. Whaley, 55 N.C. App. 321, 285 S.E.2d 621 (1982).

Cited in Dean v. Gupton, 136 N.C. 141, 48 S.E. 576 (1904); Clendenin v. Clendenin, 181 N.C. 465, 107 S.E. 458 (1921); Rutledge v. A.T. Griffin Mfg. Co., 183 N.C. 430, 111 S.E. 774 (1922); Johnson v. Fry, 195 N.C. 832, 143 S.E. 857 (1928); Reid v. Reid, 206 N.C. 1, 173 S.E. 10 (1934); Williams v. Robertson, 233 N.C. 309, 63 S.E.2d 632 (1951); Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692 (1952); Washington v. McLawhorn, 237 N.C. 449, 75 S.E.2d 402 (1953); McRorie v. Shinn, 11 N.C. App. 475, 181 S.E.2d 773 (1971); Barringer v. Weathington, 11 N.C. App. 618, 182 S.E.2d 239 (1971).


§ 1-40. Twenty years adverse possession.

No action for the recovery or possession of real property, or the issues and profits thereof, shall be maintained when the person in possession thereof, or defendant in the action, or those under whom he claims, has possessed the property under known and visible lines and boundaries adversely to all other persons for 20 years; and such possession so held gives a title in fee to the possessor, in such property, against all persons not under disability.

History

(C.C.P., s. 23; Code, s. 144; Rev., s. 384; C.S., s. 430.)

Cross References. - As to adverse possession for seven years under color of title, see G.S. 1-38.

Legal Periodicals. - For article on recent developments in North Carolina law of eminent domain, see 48 N.C.L. Rev. 767 (1970).

For article, "Transferring North Carolina Real Estate Part I: How the Present System Functions," see 49 N.C.L. Rev. 413 (1971).

For comment, "Taking Without Compensation: Measure of Permanent Damages Modified by Application of Limitation of Actions for Trespass," see 20 Wake Forest L. Rev. 671 (1984).

For note, "Walls v. Grohman: Adverse Possession in Mistaken Boundary Cases," see 64 N.C.L. Rev. 1496 (1986).

For article, "Torrens Title in North Carolina-Maybe a Hundred Years Is Long Enough," see 39 Campbell L. Rev. 271 (2017).

CASE NOTES

I. IN GENERAL.

Editor's Note. - Many of the cases cited in the case notes to G.S. 1-38 may also have application to this section.

Applicability. - Brother's claim challenging the sister's possession of their deceased mother's real property was subject to the G.S. 1-38 limitations period rather than a 20-year period under G.S. 1-40 where a deed to the sister passed the appearance of color of title. Honeycutt v. Weaver, 257 N.C. App. 599, 812 S.E.2d 859 (2018).

Actual Title in Fee Now Given Under This Section. - The possession for 20 years which under prior law raised a presumption of title now has the force and effect of giving an actual title in fee by the provisions of this section. Covington v. Stewart, 77 N.C. 148 (1877).

Section Prescribes Maximum Time Required. - It is error to charge that the adverse claimant must maintain open and continuous possession without a break for 30 years before the bringing of his action, as only 20 years' adverse possession is required to give a title in fee to the possessor, as against all persons not under disability, except the State. Walden v. Ray, 121 N.C. 237, 28 S.E. 293 (1897).

G.S. 1-56 Inapplicable to Recovery of Realty. - This section and G.S. 1-38 apply to actions for the recovery of real estate, to the exclusion of G.S. 1-56. Williams v. Scott, 122 N.C. 545, 29 S.E. 877 (1898).

Color of Title Under G.S. 1-38 Immaterial When This Section Applies. - Where title by adverse possession can be established under this section, the question of whether color of title is sufficient under G.S. 1-38 is immaterial. Atwell v. Shook, 133 N.C. 387, 45 S.E. 777 (1903). See also, May v. Atlantic Coast Line R.R., 151 N.C. 388, 66 S.E. 310 (1909).

One can acquire a prescriptive easement by adverse use for seven years under color of title pursuant to G.S. 1-38. Higdon v. Davis, 71 N.C. App. 640, 324 S.E.2d 5 (1984), rev'd on other grounds, 315 N.C. 208, 337 S.E.2d 543 (1985).

In those cases where the other elements of prescription are present, adverse possession of an easement under written color of title for seven years pursuant to G.S. 1-38 shall give title to the easement by prescription. Higdon v. Davis, 71 N.C. App. 640, 324 S.E.2d 5 (1984), rev'd on other grounds, 315 N.C. 208, 337 S.E.2d 543 (1985).

When a landowner, acting under a mistake as to the true boundary between his property and that of another, takes possession of land believing it to be his own and claims title thereto, his possession and claim of title is adverse. If such adverse possession meets all other requirements and continues for the requisite statutory period, the claimant acquires title by adverse possession even though the claim of title is founded on a mistake. Walls v. Grohman, 315 N.C. 239, 337 S.E.2d 556 (1985).

For case applying the holding of Walls v. Grohman, 315 N.C. 239, 337 S.E.2d 556 (1985) to a case which was pending on appeal when the decision was announced, see Fauchette v. Zimmerman, 79 N.C. App. 265, 338 S.E.2d 804 (1986).

Limitations for Ejectment Actions. - This section and G.S. 1-38 are the applicable statutes of limitation for ejectment actions. These statutes prescribe the period of time beyond which the owner of land is not privileged to bring an action for the recovery of his land from a person in possession thereof. Poore v. Swan Quarter Farms, Inc., 79 N.C. App. 286, 338 S.E.2d 817 (1986).

Where defendant State of North Carolina and the North Carolina Diocese had possessed the property in question for over a century, to the extent plaintiffs' allege that defendants held the property under color of title, plaintiffs' claim was barred by the applicable seven year statutory period, and even if plaintiffs alleged that defendants do not hold title at all, the 20 year statute of limitations period for actions to recover property held in adverse possession still barred plaintiffs' claim. Majeed v. North Carolina, 520 F. Supp. 2d 720 (E.D.N.C. Oct. 4, 2007).

Statute of Limitations Applicable to Encroachments on Easements. - Decision of the court of appeals in Pottle v. Link, 187 N.C. App. 746, 654 S.E.2d 64 (2007), is overruled insofar as that opinion deemed G.S. 1-40 (2015) inapplicable to actions involving encroachments on easements. Duke Energy Carolinas, LLC v. Gray, 369 N.C. 1, 789 S.E.2d 445 (2016).

Defendants mooted their statute of limitations claim based on color of title where they acknowledged plaintiff held a perpetual easement right and had the right to maintain high-voltage power lines. Duke Energy Progress, Inc. v. Kane, 265 N.C. App. 1, 827 S.E.2d 312 (2019).

Actions to remove a cloud upon title are in essence ejectment actions and are properly reviewed as such where defendants are in actual possession and plaintiffs seek to recover possession. Poore v. Swan Quarter Farms, Inc., 79 N.C. App. 286, 338 S.E.2d 817 (1986).

Where plaintiffs made no specific allegation that defendants were in actual possession at the time of the filing of their action, and did not seek specifically to recover possession in their demand for relief, but merely prayed for rents and profits and removal of certain deeds as a cloud upon their title, plaintiffs' actions was not in essence one for ejectment controlled by G.S. 1-38 and this section; rather, plaintiffs' action was one to remove a cloud upon title which was not barred by any statute of limitations. Poore v. Swan Quarter Farms, Inc., 79 N.C. App. 286, 338 S.E.2d 817 (1986).

Plaintiffs' unregistered deed did not prevent their setting up adverse possession for 20 years. Sessoms v. McDonald, 237 N.C. 720, 75 S.E.2d 904 (1953).

Application of Section to State and Its Agencies. - The General Assembly intended that this section and G.S. 1-38 should apply to any legal entity, including the State of North Carolina and its agencies, capable of adversely possessing land and of acquiring title thereto. Williams v. North Carolina State Bd. of Educ., 266 N.C. 761, 147 S.E.2d 381 (1966), commented on in 45 N.C.L. Rev. 964 (1967).

Application to Utility Companies. - Trial court erred in granting a utility company summary judgment upon finding that its claim was barred by G.S. 1-50(a)(3) because the claim was subject to the twenty-year statute of limitations set forth in G.S. 1-40; likewise, the ten-year statute of limitations for sealed instruments found in G.S. 1-47(2) was inapplicable because it too was contained in Chapter 1, Article 5 of the General Statutes, which did not apply to the recovery of real property. Duke Energy Carolinas, LLC v. Gray, 369 N.C. 1, 789 S.E.2d 445 (2016).

Assertion of Claim Where United States Is Nominal Party. - The principle that the United States is not bound by any statute of limitations, nor barred by any laches of its officers, however gross, did not apply where the United States is a mere nominal party, so as to preclude an adverse possessor from asserting an adverse claim against Indians, who were the real parties in interest. United States v. Rose, 20 F. Supp. 350 (W.D.N.C. 1937).

Effect of Appointment of Receiver. - When a statute of limitations has begun to run, no subsequent disability will stop it, and ordinarily the mere appointment of a receiver will not toll the statute unless the circumstances are such that such appointment precludes the institution of suit. Thus, when a receiver has full authority to institute suit, his appointment will not suspend the running of limitations under this section. Nicholas v. Salisbury Hdwe. & Furn. Co., 248 N.C. 462, 103 S.E.2d 837 (1958).

Where judgment debtor had lost title by adverse possession prior to acquisition and registration of judgment, the judgment creditor under G.S. 1-234 was not entitled to execution on the locus in quo, as the judgment debtor had no title at the time of the judgment; this result was not affected by the giving of a deed by the debtor to the claimant which was not registered until after the judgment. Johnson v. Fry, 195 N.C. 832, 143 S.E. 857 (1928).

Presumption of Deed to Possessor. - There was no error in a charge that where title was out of the State and the evidence showed possession for 20 years the jury might presume a deed to the possessor from any person having title. This is settled law. Melvin v. Waddell, 75 N.C. 361 (1876).

Deed Held Inoperative to Fix "Known and Visible Lines and Boundaries". - Where the deed relied on by plaintiffs was inoperative as color of title, the description therein was equally inoperative to fix "known and visible lines and boundaries" as the basis for a claim of adverse possession for 20 years. Powell v. Mills, 237 N.C. 582, 75 S.E.2d 759 (1953).

Recovery of Right-of-Way Not Used for Railroad Purposes. - The owner of the fee is not barred from maintaining an action in ejectment against a railroad company or its lessee to recover for that part of right-of-way no longer used for railroad purposes until the expiration of 20 years. Sparrow v. Dixie Leaf Tobacco Co., 232 N.C. 589, 61 S.E.2d 700 (1950).

For case holding that court erred in determining that defendants established adverse possession under color where disputed area was a lappage, see Allen v. Morgan, 48 N.C. App. 706, 269 S.E.2d 753 (1980).

Adverse Possession as Question for Jury. - Where there is evidence that title has been acquired under 20 years' adverse possession, this question should be submitted to the jury. McClure v. Crow, 196 N.C. 657, 146 S.E. 713 (1929).

Effect of Purchase of Adverse Claim. - A party is not bound to admit, and does not necessarily admit, title in another because he prefers to get rid of that other's claim by purchasing it. He has a right to quiet his possession and protect himself from litigation in any lawful mode that appears to him most advantageous or desirable. The acts and declarations of the possessor may be given in evidence with a view of showing the character of his claim, but whether the possession is adverse or not is a question for the jury to determine upon all the evidence. Wilson County Bd. of Educ. v. Lamm, 276 N.C. 487, 173 S.E.2d 281 (1970).

As to absence due to imprisonment, see Helton v. Cook, 27 N.C. App. 565, 219 S.E.2d 505 (1975), cert. denied, 289 N.C. 297, 222 S.E.2d 697 (1976).

Action for damages incident to construction in 1975 of an apartment building which encroached approximately one square foot on plaintiff's land involved a continuing trespass, and for damages incident to the original wrong, i.e., the construction of the building itself, no recovery could be had. However, action to permanently redress defendant's unauthorized taking of the land was subject to the 20-year statute of limitations for adverse possession. Williams v. South & S. Rentals, Inc., 82 N.C. App. 378, 346 S.E.2d 665 (1986).

Applied in Reid v. Reid, 206 N.C. 1, 173 S.E. 10 (1934); Caskey v. West, 210 N.C. 240, 186 S.E. 324 (1936); Owens v. Blackwood Lumber Co., 210 N.C. 504, 187 S.E. 804 (1936); Newkirk v. Porter, 237 N.C. 115, 74 S.E.2d 235 (1953); Chisholm v. Hall, 255 N.C. 374, 121 S.E.2d 726 (1961); Kennedy v. Whaley, 55 N.C. App. 321, 285 S.E.2d 621 (1982); Walls v. Grohman, 74 N.C. App. 448, 324 S.E.2d 874 (1985).

Cited in Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142 (1789); Dean v. Gupton, 136 N.C. 141, 48 S.E. 576 (1904); Stewart v. Stephenson, 172 N.C. 81, 89 S.E. 1060 (1916); Rutledge v. A.T. Griffin Mfg. Co., 183 N.C. 430, 111 S.E. 774 (1922); Dill-Cramer Truitt Corp. v. Downs, 195 N.C. 189, 141 S.E. 570 (1928); Glass v. Lynchburg Shoe Co., 212 N.C. 70, 192 S.E. 899 (1937); Nichols v. York, 219 N.C. 262, 13 S.E.2d 565 (1941); Whiteheart v. Grubbs, 232 N.C. 236, 60 S.E.2d 101 (1950); Wilson v. Chandler, 235 N.C. 373, 70 S.E.2d 179 (1952); Chambers v. Chambers, 235 N.C. 749, 71 S.E.2d 57 (1952); Washington v. McLawhorn, 237 N.C. 449, 75 S.E.2d 402 (1953); Justice v. Mitchell, 238 N.C. 364, 78 S.E.2d 122 (1953); Everett v. Sanderson, 238 N.C. 564, 78 S.E.2d 408 (1953); Newkirk v. Porter, 240 N.C. 296, 82 S.E.2d 74 (1954); Jenkins v. Trantham, 244 N.C. 422, 94 S.E.2d 311 (1956); Scott v. Lewis, 246 N.C. 298, 98 S.E.2d 294 (1957); Morehead v. Harris, 255 N.C. 130, 120 S.E.2d 425 (1961); Lane v. Lane, 255 N.C. 444, 121 S.E.2d 893 (1961); Patterson v. Buchanan, 265 N.C. 214, 143 S.E.2d 76 (1965); Scott Poultry Co. v. Bryan Oil Co., 272 N.C. 16, 157 S.E.2d 693 (1967); Hoyle v. City of Charlotte, 276 N.C. 292, 172 S.E.2d 1 (1970); McRorie v. Shinn, 11 N.C. App. 475, 181 S.E.2d 773 (1971); Canady v. Cliff, 93 N.C. App. 50, 376 S.E.2d 505 (1989); Rudisail v. Allison, 108 N.C. App. 684, 424 S.E.2d 696 (1993); White v. Farabee, 212 N.C. App. 126, 713 S.E.2d 4 (2011); Quinn v. Quinn, 243 N.C. App. 374, 777 S.E.2d 121 (2015).

II. POSSESSION, GENERALLY.

Editor's Note. - See the Editor's note above under analysis line I. In General.

Exclusivity. - Where defendants claimed adverse possession of a cemetery lot under G.S. 1-40, plaintiffs' motions for a directed verdict and for JNOV were properly denied; evidence that defendants had been farming the lot since the 1960's and that there had not been a burial in the lot in nearly 60 years provided more than a scintilla of evidence that defendants had made exclusive use of the lot as farmland for the requisite period; there was no evidence that plaintiffs had used the lot. Jernigan v. Herring, 179 N.C. App. 390, 633 S.E.2d 874 (2006), review denied, 361 N.C. 355, 645 S.E.2d 770 (2007).

Requisites of Adverse Possession. - In order for adverse possession to ripen title in the possessor, the possession must be actual, open, hostile, exclusive and continuous. Campbell v. Mayberry, 12 N.C. App. 469, 183 S.E.2d 867, cert. denied, 279 N.C. 726, 184 S.E.2d 883 (1971).

There must be an actual possession of the real property claimed; the possession must be hostile to the true owner; the claimant's possession must be exclusive; the possession must be open and notorious; the possession must be continuous and uninterrupted for the statutory period; and the possession must be with an intent to claim title to the land occupied. Mizzell v. Ewell, 27 N.C. App. 507, 219 S.E.2d 513 (1975); Stone v. Conder, 46 N.C. App. 190, 264 S.E.2d 760, cert. denied, 301 N.C. 105 (1980).

Adverse possession is as the actual, open, notorious, exclusive, continuous and hostile occupation and possession of the land of another for the statutory period. Casstevens v. Casstevens, 63 N.C. App. 169, 304 S.E.2d 623 (1983).

To acquire title to land through adverse possession, plaintiff must show actual, open, hostile, exclusive, and continuous possession of the land claimed for 20 years under known and visible lines and boundaries. Curd v. Winecoff, 88 N.C. App. 720, 364 S.E.2d 730 (1988).

Uninterrupted Possession for 20 Years. - Defendants' claim of adverse possession as of right failed because they had not occupied the property uninterrupted for 20 years. Adams Creek Assocs. v. Davis, 227 N.C. App. 457, 746 S.E.2d 1 (2013).

The following legal principles relating to easements by prescription have evolved in North Carolina appellate decisions: (1) The burden of proving the elements essential to the acquisition of a prescriptive easement is on the party claiming the easement; (2) the law presumes that the use of a way over another's land is permissive or with the owner's consent unless the contrary appears; (3) the use must be adverse, hostile, and under a claim of right; (4) the use must be open and notorious; (5) the adverse use must be continuous and uninterrupted for a period of 20 years and (6) there must be substantial identity of the easement claimed. Higdon v. Davis, 71 N.C. App. 640, 324 S.E.2d 5 (1984), rev'd on other grounds, 315 N.C. 208, 337 S.E.2d 543 (1985).

Establishment of Easement by Prescription. - An easement by prescription is created by adverse possession. To establish an easement by prescription, defendants must prove: (1) that their use of roadway was adverse, hostile or under claim of right; (2) that this use was open and notorious such that plaintiff had notice of the claim; (3) that this use has been continuous and uninterrupted for a period of at least 20 years; and (4) that there was substantial identity of the easement claimed throughout the 20-year period. Furthermore, defendants must rebut the presumption that their use of the road was made with the plaintiff's permission, since a permissive use of a roadway can never ripen into a prescriptive easement. Curd v. Winecoff, 88 N.C. App. 720, 364 S.E.2d 730 (1988).

Adverse possession sufficient to ripen title is the exclusive use of the claimant for 20 years, continuously taxing such exclusive benefits as the land is capable of yielding, under known and visible metes and bounds. Johnson v. Fry, 195 N.C. 832, 143 S.E. 857 (1928).

Actual Possession and Intent Required. - In order to establish title by adverse possession there must be actual possession with an intent to hold solely for the possessor to the exclusion of others. Mizzell v. Ewell, 27 N.C. App. 507, 219 S.E.2d 513 (1975).

The claimant must exercise acts of dominion over the land in making the ordinary use and taking the ordinary profits of which the land is susceptible, with such acts being so repeated as to show that they are done in the character of owner, and not merely as an occasional trespasser. Mizzell v. Ewell, 27 N.C. App. 507, 219 S.E.2d 513 (1975).

So as to Subject Himself to Action in Ejectment. - A possession that ripens into title must be such as continually subjects some portion of the disputed land to the only use of which it is susceptible. The test involved is whether the acts of ownership were such as to subject the claimant continually during the whole statutory period to an action in the nature of trespass in ejectment instead of to one or several actions of trespass quare clausam fregit for damages. Mizzell v. Ewell, 27 N.C. App. 507, 219 S.E.2d 513 (1975).

No Constructive Possession Absent Color of Title. - There can be no constructive possession by one holding land adversely unless he holds under color of title. Carswell v. Town of Morganton, 236 N.C. 375, 72 S.E.2d 748 (1952).

Adverse possession, to ripen into title after seven years, must be under color of title. Otherwise, a period of 20 years is required. Taylor v. Brittain, 76 N.C. App. 574, 334 S.E.2d 242 (1985), modified and aff'd, 317 N.C. 146, 343 S.E.2d 536 (1986).

Adverse Possessor Without Color Cannot Enlarge Rights Beyond Limits of Actual Possession. - An adverse possessor of land without color of title cannot acquire title to any greater amount of land than that which he has actually occupied for the statutory period. He cannot enlarge his rights beyond the limits of his actual possession by a claim of title to other land abutting that which he actually occupies, even though such other land may be defined by marked boundaries. Carswell v. Town of Morganton, 236 N.C. 375, 72 S.E.2d 748 (1952).

Where plaintiffs rely upon adverse possession alone, without color of title, title acquired under such circumstances is confined to the lands actually occupied. An adverse possessor of land without color of title cannot acquire title to any greater amount of land than that which he has actually occupied for the statutory period. Sessoms v. McDonald, 237 N.C. 720, 75 S.E.2d 904 (1953).

Adverse Possession of Portion of Property. - Daughter-in-law failed to meet her burden of establishing an adverse possession claim under known and visible lines and boundaries within a 23.72-acre tract but repeatedly claimed the entire tract; therefore, she was not entitled to an instruction on adverse possession of the improved portion of the property. Minor v. Minor, 366 N.C. 526, 742 S.E.2d 790 (2013).

Trial court erred in concluding that a property owner had not established adverse possession because the uncontradicted evidence showed the owner's actual, open, notorious, exclusive, continuous, and hostile occupation and possession of the disputed area for the statutory period; the neighbors presented no evidence that they disputed or gave permission to the owner to erect his chain link fence in the disputed area or that anyone, other than the owner, claimed, used, or maintained the area. Parker v. Desherbinin, - N.C. App. - , - S.E.2d - (Jan. 2, 2017).

Several successive possessions may be tacked for the purpose of showing a continuous adverse possession where there is privity of estate or connection of title between several occupants. Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692 (1952).

But a grantee cannot tack adverse possession of predecessor as to land not embraced in his deed; therefore, where he has been in possession for less than 20 years, he cannot establish title by adverse possession to land lying outside the boundaries of his deed. Ramsey v. Ramsey, 229 N.C. 270, 49 S.E.2d 476 (1948); Simmons v. Lee, 230 N.C. 216, 53 S.E.2d 79 (1949).

Purchasers could not tack their adverse possession of a parcel to their predecessor's adverse possession where case law reflected that in North Carolina, privity through a deed did not extend beyond the property described therein, and the deed the purchasers received had not described the disputed parcel. Cole v. Bonaparte's Retreat Prop. Owners' Ass'n, 259 N.C. App. 27, 815 S.E.2d 403 (2018).

Possession by Mistake May Be Tacked to Intentional Possession. - Where adverse possession originates in mistake but then, upon discovery of the mistake by the adverse possessor, is perpetuated by conscious intent, the uninterrupted periods of adverse possession may be tacked together and considered as one for the purpose of satisfying the prescriptive period set out in this section. Enzor v. Minton, 123 N.C. App. 268, 472 S.E.2d 376 (1996).

And a Deed Does Not Create Privity as to Land Not Described Therein But Occupied in Connection Therewith. - Although a grantee claiming land within the boundaries called for in a deed or other instrument constituting color of title may tack his grantor's possession of such land to that of his own for the purpose of establishing adverse possession for the requisite period, the rule is that a deed does not of itself create privity between the grantor and the grantee as to land not described in the deed but occupied by the grantor in connection therewith, and this is so even though the grantee enters into possession of the land not described and uses it in connection with that conveyed. Sipe v. Blankenship, 37 N.C. App. 499, 246 S.E.2d 527 (1978), cert. denied, 296 N.C. 411, 251 S.E.2d 470 (1979), overruled on other grounds, Walls v. Grohman, 315 N.C. 239, 337 S.E.2d 556 (1985).

The adverse possession of an ancestor may be cast by descent upon his heirs and tacked to their possession for the purpose of showing title by adverse possession, where there was no hiatus or interruption in the possession. International Paper Co. v. Jacobs, 258 N.C. 439, 128 S.E.2d 818 (1963).

But Not Where Heir Was Never in Possession. - The fact that the plaintiff admitted that she never actually possessed the property at issue was fatal to her claim of adverse possession, notwithstanding her contention that she should be able to tack onto the possession of her direct ancestors. Merrick v. Peterson, 143 N.C. App. 656, 548 S.E.2d 171 (2001).

One may assert title to land embraced within another's deed by showing adverse possession of the portion claimed for 20 years under known and visible lines and boundaries, but his claim is limited to the area actually possessed, and the burden is upon the claimant to establish his title to the land in that manner. Wallin v. Rice, 232 N.C. 371, 61 S.E.2d 82 (1950); Scott v. Lewis, 246 N.C. 298, 98 S.E.2d 294 (1957).

Where the owner of a lot encroaches upon an adjacent lot and builds structures partly thereon, the owner of the adjacent lot is not estopped by his silence and failure to object from asserting his title thereto in an action in ejectment, and he does not lose his title thereto until the adverse user has continued for the 20 years necessary to ripen title by adverse possession under this section, the user not being under color of title. Ramsey v. Nebel, 226 N.C. 590, 39 S.E.2d 616 (1946).

Effect of Exclusive Dominion After Dedication to Public. - Where landowner platted and sold the land by deeds referring to streets, parks, etc., according to a registered map, so that the grantees had an easement therein, but later fenced off a part of the land so offered for dedication to the public and under known metes and bounds exercised exclusive and adverse dominion over the enclosed lands, asserting absolute title, the statute of limitations would begin to run against the easements of the grantees thus acquired, which would ripen title to the enclosed lands in favor of the owner or his grantee under the provisions of this section by 20 years' adverse possession. Gault v. Town of Lake Waccamaw, 200 N.C. 593, 158 S.E. 104 (1931).

Mines and Mineral Rights. - Plaintiff claiming mineral rights by adverse possession without color of title must show such possession under known and visible lines and boundaries for 20 years. Mere prospecting does not constitute possession of such rights. Davis v. Federal Land Bank, 219 N.C. 248, 13 S.E.2d 417 (1941).

For case holding sheriff's deed to grantor of plaintiff in ejectment not to be evidence of possession, see Prevatt v. Harrelson, 132 N.C. 250, 43 S.E. 800 (1903).

The "continuity" necessary for a party to establish a prescriptive easement depends on the nature of the easement asserted. The use simply has to be often enough for the true owner to have notice that a party is asserting an easement. Vandervoort v. McKenzie, 117 N.C. App. 152, 450 S.E.2d 491 (1994).

Claim to Recover Full Use of Real Property Easement Subject to Statute of Limitations. - Trial court erred in granting summary judgment in favor of a utility company upon finding that its claim was barred by G.S. 1-50(a)(3) because the claim was subject to the twenty-year statute of limitations set forth in G.S. 1-40; because the company sought to recover full use of its easement, and because the easement was real property, the action was for the recovery of real property. Duke Energy Carolinas, LLC v. Gray, 369 N.C. 1, 789 S.E.2d 445 (2016).

Evidence Held Sufficient. - Sufficient evidence was presented to show that defendant acquired title to property by adverse possession. Marlowe v. Clark, 112 N.C. App. 181, 435 S.E.2d 354 (1993).

Evidence Held Insufficient. - Where plaintiff claimed that his predecessor in title went into possession of two tracts of land through a tenant who possessed both tracts of land for at least 20 years without color of title, but his evidence tended to show that the tenant actually occupied only a few acres of one of the tracts, and he had no evidence tending to describe, identify or locate the particular land actually occupied, nonsuit was properly entered. Carswell v. Town of Morganton, 236 N.C. 375, 72 S.E.2d 748 (1952).

Putative adverse possessors did not prove their claim to a parcel because they did not show, as to 6 of 12 lots surrounding the parcel, the existence of known and visible boundaries for the requisite 20 years, particularly as one boundary of the disputed parcel was not established until a relatively recent real estate transfer. Dockery v. Hocutt, 357 N.C. 210, 581 S.E.2d 431 (2003).

Possessor of real property did not acquire title to the property through adverse possession under G.S. 1-40 because competent evidence supported the finding that he failed to satisfy the required 20 year time period under G.S. 1-40 even though his late parents, who were predecessors in interest, occupied the property as tenants with a life estate. Pegg v. Jones, 187 N.C. App. 355, 653 S.E.2d 229 (2007), aff'd, 362 N.C. 343, 661 S.E.2d 732 (2008).

III. HOSTILE OR ADVERSE NATURE OF POSSESSION.

.

Editor's Note. - See the Editor's Note above under analysis line I. In General.

In order to establish that a use is hostile, it is not necessary to show a heated controversy, but it is necessary to show that the use was of a nature that would give the owner of the land notice that the use was being made under a claim of right. Potts v. Burnette, 46 N.C. App. 626, 265 S.E.2d 504 (1980), rev'd on other grounds, 301 N.C. 663, 273 S.E.2d 285 (1981).

To establish that a use is hostile rather than permissive, it is not necessary to show that there was a heated controversy, or a manifestation of ill will, or that the claimant was in any sense an enemy of the owner of the servient estate. A hostile use is simply a use of such nature and exercise under circumstances which manifest and give notice that the use is being made under a claim of right. Higdon v. Davis, 71 N.C. App. 640, 324 S.E.2d 5 (1984), rev'd on other grounds, 315 N.C. 208, 337 S.E.2d 543 (1985).

Requisite hostility to support adverse possession existed, and the time of adverse possession prior to 1992 could tack to that adverse possession after 1992 where the families never asked permission to use the disputed land or make improvements and excluded others from parking on the property, and following the resolution by a town council in 1992 that the town did not own the disputed property, before transferring the disputed property to a homeowners association that the families formed. Lancaster v. Maple St. Homeowners Ass'n, 156 N.C. App. 429, 577 S.E.2d 365 (2003), cert. denied, 357 N.C. 251, 582 S.E.2d 272 (2003).

When a landowner, acting under a mistake as to the true boundary between his property and that of another, takes possession of land believing it to be his own and claims title thereto, his possession and claim of title is adverse. If such adverse possession meets all other requirements and continues for the requisite statutory period, the claimant acquires title by adverse possession even though the claim of title is founded on a mistake. Walls v. Grohman, 315 N.C. 239, 337 S.E.2d 556 (1985).

For case applying the holding of Walls v. Grohman, 315 N.C. 239, 337 S.E.2d 556 (1985) to a case which was pending on appeal when the decision was announced, see Fauchette v. Zimmerman, 79 N.C. App. 265, 338 S.E.2d 804 (1986).

There must be some evidence accompanying a use which tends to show that the use is hostile in character and tends to repel the inference that the use is permissive and with the owner's consent. A mere permissive use of a way over another's land, however long it may be continued, can never ripen into an easement by prescription. Higdon v. Davis, 71 N.C. App. 640, 324 S.E.2d 5 (1984), rev'd on other grounds, 315 N.C. 208, 337 S.E.2d 543 (1985).

Entry into Possession with Permission of Owner. - If a person enters into possession of a piece of land with the permission of the owner, such possession would not be adverse unless and until he disclaimed such arrangement and made the owner aware of such disclaimer or disclaimed the arrangement in such manner as to put the owner on notice that he was no longer using the land by permission but was claiming it as absolute owner. Wilson County Bd. of Educ. v. Lamm, 276 N.C. 487, 173 S.E.2d 281 (1970).

Remaindermen did not meet the requisite requirements for adverse possession where their possession of the property was not adverse in that it was with the acquiescence and permission of the life tenant; the parties stipulated that the property was partitioned "with the knowledge of" the life tenant; and there was no record evidence that the trust had been terminated. Cassada v. Cassada, 103 N.C. App. 129, 404 S.E.2d 491, cert. denied, 329 N.C. 786, 408 S.E.2d 516 (1991).

Whether Acts Sufficient to Establish An Easement. - Evidence at trial that party claiming an easement maintained and repaired the roadway, that he went onto the property at least once each year to clear out the roadway and that as far as he knew, he was the only person who did so on a regular basis, was sufficient to create a jury question of whether his use of the roadway was adverse, hostile or under claim of right. Vandervoort v. McKenzie, 117 N.C. App. 152, 450 S.E.2d 491 (1994).

Permissive Use. - Where neighbors' driveway and shrubbery encroached onto adjacent property, the neighbors could not establish a claim for adverse possession, because they did not possess the disputed tract in a hostile manner for a continuous 20-year period since their use of the disputed tract was permissive following a conversation with the owner, who gave the neighbors permission to use the disputed tract. Jones v. Miles, 189 N.C. App. 289, 658 S.E.2d 23 (2008).

Once possession becomes hostile, a grant of permission from the true owner will not defeat such hostility if the possessor either rejects the grant of permission or otherwise takes some affirmative step to put the true owner on notice that the possessor's use of the land remains hostile. However, a true owner's grant of permission will defeat a possessor's hostile use if the possessor takes no further action to reassert the possessor's claim over the land; in such cases, the possessor has not put the true owner on notice that the possessor still intends to claim the disputed land as the possessor's own. Jones v. Miles, 189 N.C. App. 289, 658 S.E.2d 23 (2008).

Judgment declaring plaintiffs to be the lawful owners of the property was affirmed because defendant's possession was presumed permissive, and she failed to rebut that presumption and demonstrate that her possession was hostile for 20 years; defendant lived on the property with plaintiffs' permission and merely paid a leasehold interest on the property. Minor v. Minor, 224 N.C. App. 471, 737 S.E.2d 116 (2012), aff'd, 742 S.E.2d 790, 2013 N.C. LEXIS 490 (2013).

Presumption of Permissive Use of Way over Another's Land. - In North Carolina, unlike the majority of other jurisdictions, there is a presumption that the use of a way over another's land is permissive, unless evidence appears to the contrary. Potts v. Burnette, 46 N.C. App. 626, 265 S.E.2d 504 (1980), rev'd on other grounds, 301 N.C. 663, 273 S.E.2d 285 (1981).

Use of a way over another's land is presumed permissive or with the owner's consent unless the contrary is shown by competent evidence. Clifton v. Fesperman, 50 N.C. App. 178, 272 S.E.2d 624 (1980).

Possession Against Tenant in Common. - Respondent's answer to petitioner's prior partition claim amounted to an open, unequivocal denial of petitioner's rights to any part of the subject property; thus, for purposes of this section, the advent of respondent's adverse possession was the date of respondent's actual ouster of petitioner. Beck v. Beck, 125 N.C. App. 402, 481 S.E.2d 317 (1997).

Possession of one tenant in common is presumed to be possession of all. Tharpe v. Holcomb, 126 N.C. 365, 35 S.E. 608 (1900); Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692 (1952).

Absent Actual Ouster or Sole Adverse Possession. - Possession of one tenant in common is the possession of all his cotenants unless and until there has been an actual ouster or sole adverse possession for 20 years. Parham v. Henley, 224 N.C. 405, 30 S.E.2d 372 (1944); Morehead v. Harris, 262 N.C. 330, 137 S.E.2d 174 (1964).

Where plaintiff and defendants were tenants in common, possession of defendants, not having been adverse for 20 years, was the possession of plaintiff. Conkey v. John L. Roper Lumber Co., 126 N.C. 499, 36 S.E. 42 (1900).

Before a person can adversely possess land held in cotenancy, there must be an ouster of his cotenants. Casstevens v. Casstevens, 63 N.C. App. 169, 304 S.E.2d 623 (1983).

Constructive Ouster. - North Carolina adheres to the rule of constructive ouster. Casstevens v. Casstevens, 63 N.C. App. 169, 304 S.E.2d 623 (1983).

The rule of constructive ouster presumes the requisite ouster and is as follows: where one tenant in common and those under who he claims have been in sole and undisturbed possession and use of the land for 20 years and where there has been no demand for rents, profits or possession. Casstevens v. Casstevens, 63 N.C. App. 169, 304 S.E.2d 623 (1983).

Upon completion of the statutory period, the constructive ouster relates back to the initial taking of possession. Casstevens v. Casstevens, 63 N.C. App. 169, 304 S.E.2d 623 (1983).

Possession Pursuant to Agreement Between Cotenants Insufficient. - Where the possession of one cotenant is pursuant to an agreement of all cotenants, his possession for more than 20 years is insufficient to bar his cotenants or their privies. Stallings v. Keeter, 211 N.C. 298, 190 S.E. 473 (1937).

Adverse possession will not ripen title as against a tenant in common short of 20 years, even under color of title. Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692 (1952).

And to ripen title under a deed from a tenant in common 20 years' adverse possession is necessary, and this applies to one to whom the alienee of a tenant has attempted to convey the entire estate. Bradford v. Bank of Warsaw, 182 N.C. 225, 108 S.E. 750 (1921).

In the absence of an actual ouster, the ouster of one tenant in common by a cotenant will not be presumed from an exclusive use of the common property and the appropriation of its profits to his own use for a less period than 20 years, and the result is not changed when one enters to whom a tenant in common has by deed attempted to convey the entire tract. Morehead v. Harris, 262 N.C. 330, 137 S.E.2d 174 (1964).

Parol Partition Among Cotenants. - Allegations that defendant's predecessor in title went into possession of the locus in quo pursuant to a parol partition between him and his cotenants in common, and that each tenant thereafter held his share so allotted in severalty and hostilely to his cotenants for more than 20 years, were sufficient to raise the issue of title by adverse possession in the tenant in common, and it was error for the trial court to disregard the plea of title by adverse possession and refuse to submit the case to the jury. Martin v. Bundy, 212 N.C. 437, 193 S.E. 831 (1937).

Life Tenant's Assent to Partition. - Even though a trust may be voluntarily terminated by act or agreement of all the beneficiaries, the life tenant's assent to the partitioning of the property alone is not sufficient to terminate a trust. Cassada v. Cassada, 103 N.C. App. 129, 404 S.E.2d 491, cert. denied, 329 N.C. 786, 408 S.E.2d 516 (1991).

Where parties have stipulated in the record that the property was divided with the permission of the life tenant, there is no reason to infer that her assent to partitioning the property should be equated with assent to terminating the trust. Cassada v. Cassada, 103 N.C. App. 129, 404 S.E.2d 491, cert. denied, 329 N.C. 786, 408 S.E.2d 516 (1991).

In an action to establish a resulting trust instituted shortly after guardian's death, upon evidence that lands were conveyed to the guardian personally but were paid for with guardianship funds, it was error to enter nonsuit upon the plea of laches and the statutes of limitation upon evidence that the guardian remained in possession for over 40 years and devised same to plaintiffs by will when defendants offered evidence that the guardian acknowledged the existence of the trust some six years prior to his death, and there was no evidence of disavowal of the trust or adversary holding during the life of the guardian. Cassada v. Cassada, 230 N.C. 607, 55 S.E.2d 77 (1949).


§ 1-41. Action after entry.

No entry upon real estate shall be deemed sufficient or valid, as a claim, unless an action is commenced thereupon within one year after the making of the entry, and within the time prescribed in this Chapter.

History

(C.C.P., s. 24; Code, s. 145; Rev., s. 385; C.S., s. 431.)

History Note. - At common law any person who had a right of possession could assert it by a peaceful entry, without the formality of legal action, and being so in possession, could retain it, and plead that it was his soil and freehold. This was allowed in all cases where the original entry of the wrongdoer was unlawful. See 1 Bouv. Law Dict., title "Entry." This section seems to be a limitation upon the rule in that while an entry may be made, it must be followed by a suit within one year and within the period of limitation (either 20, 7, 30 or 21 years after the statute began running, as this case might be) prescribed by the various sections of the chapter. The effect seems to be that the common-law entry without maintaining a suit within one year thereof is insufficient, so that one cannot repossess himself by an entry without also maintaining an action. The latter part of this section, "and within the time prescribed in this chapter," is but a recognition of the statutes prescribing the various periods necessary for an adverse possession ripening into title.

CASE NOTES

Cited in Clayton v. Cagle, 97 N.C. 300, 1 S.E. 523 (1887); Taylor v. Taylor, 143 N.C. App. 664, 547 S.E.2d 161 (2001).


§ 1-42. Possession follows legal title; severance of surface and subsurface rights.

In every action for the recovery or possession of real property, or damages for a trespass on such possession, the person establishing a legal title to the premises is presumed to have been possessed thereof within the time required by law; and the occupation of such premises by any other person is deemed to have been under, and in subordination to, the legal title, unless it appears that the premises have been held and possessed adversely to the legal title for the time prescribed by law before the commencement of the action. Provided that a record chain of title to the premises for a period of thirty years next preceding the commencement of the action, together with the identification of the lands described therein, shall be prima facie evidence of possession thereof within the time required by law.

In all controversies and litigation wherein it shall be made to appear from the public records that there has been at some previous time a separation or severance between the surface and the subsurface rights, title or properties of an area, no holder or claimant of the subsurface title or rights therein shall be entitled to evidence or prove any use of the surface, by himself or by his predecessors in title or of lessees or agents, as adverse possession against the holder of said surface rights or title; and likewise no holder or claimant of the surface rights shall be entitled to evidence or prove any use of the subsurface rights, by himself, or by his predecessors in title or of lessees or agents, as adverse possession against the holder of said subsurface rights, unless, in either case, at the time of beginning such allegedly adverse use and in each year of the same, said party or his predecessor in title so using shall have placed or caused to be placed upon the records of the register of deeds of the county wherein such property lies and in a book therein kept or provided for such purposes, a brief notice of intended use giving (i) the date of beginning or recommencing of the operation or use, (ii) a brief description of the property involved but sufficiently adequate to make said property readily locatable therefrom, (iii) the name and, if known, the address of the claimant of the right under which the operation or use is to be carried on or made and (iv) the deed or other instrument, if any, under which the right to conduct such operation or to make such use is claimed or to which it is to be attached.

History

(C.C.P., s. 25; Code, s. 146; Rev., s. 386; C.S., s. 432; 1945, c. 869; 1959, c. 469; 1965, c. 1094.)

Cross References. - As to title against the State, see G.S. 1-35.

As to adverse possession of seven years under color of title, see G.S. 1-38.

As to adverse possession of 20 years, see G.S. 1-40.

Legal Periodicals. - For note on the relationship of this section to the acquisition of easements by prescription, see 32 N.C.L. Rev. 483 (1954).

For article concerning the quest for clear land titles in North Carolina, see 44 N.C.L. Rev. 89 (1965).

For article, "Transferring North Carolina Real Estate Part I: How the Present System Functions," see 49 N.C.L. Rev. 413 (1971).

For survey of 1980 property law, see 59 N.C.L. Rev. 1209 (1981).

For article discussing the doctrine of color of title in North Carolina, see 13 N.C. Cent. L.J. 123 (1982).

For note, "Walls v. Grohman: Adverse Possession in Mistaken Boundary Cases," see 64 N.C.L. Rev. 1496 (1986).

CASE NOTES

This section and G.S. 1-39 are to be construed together. Barbee v. Edwards, 238 N.C. 215, 77 S.E.2d 646 (1953); Elliott v. Goss, 250 N.C. 185, 108 S.E.2d 475 (1959); Campbell v. Mayberry, 12 N.C. App. 469, 183 S.E.2d 867, cert. denied, 279 N.C. 726, 184 S.E.2d 883 (1971); Stone v. Conder, 46 N.C. App. 190, 264 S.E.2d 760, cert. denied, 301 N.C. 105 (1980).

Effect of Construing This Section and G.S. 1-39 Together on Burden of Proof. - This section, when construed with G.S. 1-39, simply means that proof of a connected chain of title to real estate for a period of 30 years by a party seeking possession thereof is prima facie evidence that such party has been in possession of the real estate within 20 years next preceding the institution of the action, as required by G.S. 1-39, and thus has standing to maintain his action. It does not mean that a party may meet the burden of proving title simply by basing his claim on an instrument recorded at least 30 years before the institution of his action. That burden must still be met. Campbell v. Mayberry, 12 N.C. App. 469, 183 S.E.2d 867, cert. denied, 279 N.C. 726, 184 S.E.2d 883 (1971).

G.S. 1-39 and this section are to be construed together. When so construed, the rule is as follows: It is not necessary that a plaintiff in an action to recover land should allege in his complaint that he had possession within 20 years before the action was brought, for if he establishes at trial a legal title to the premises, he will be presumed to have been possessed thereof within the time required by law, unless it is made to appear that such premises have been held and possessed adversely to such legal title for the time prescribed by law before the commencement of such action. Williams v. North Carolina State Bd. of Educ., 266 N.C. 761, 147 S.E.2d 381 (1966), commented on in 45 N.C.L. Rev. 964 (1967).

Where plaintiff, by proving legal title, has raised the presumption under this section that he has been in possession within 20 years, such presumption operates to satisfy the requirements of G.S. 1-39, so that plaintiff does not have to prove such possession. Then defendant must show that he himself has been in possession adversely for 20 years. Johnston v. Pate, 83 N.C. 110 (1880); Conkey v. John L. Roper Lumber Co., 126 N.C. 499, 36 S.E. 42 (1900).

Statutory Presumption Dependent on Showing of Legal Title. - Statutory presumption as to possession and occupation of land in favor of the true owner, from the express language of the provision, will arise and exist only in favor of a claimant who has shown "a legal title"; until this is made to appear, the presumption is primarily in favor of the occupant, that he is in possession asserting ownership. Moore v. Miller, 179 N.C. 396, 102 S.E. 627 (1920).

Presumption Inapplicable Where Rebutted by Admission. - It is not necessary to consider the effect of this section where, conceding the presumption raised thereby, it is rebutted by admission in the case. Kirkman v. Holland, 139 N.C. 185, 51 S.E. 856 (1905).

Presumption Not Rebutted. - The presumption that one who proves legal title in himself has been in possession within 20 years was not rebutted by proof that an adverse claimant had been in possession where the claimant held under a deed from a tenant in common with the devisor of the holder of the legal title. Roscoe v. John L. Roper Lumber Co., 124 N.C. 42, 32 S.E. 389 (1899).

Occupancy in Subordination to Title Acquired by Adverse Possession. - Title acquired by adverse possession is legal title, and occupancy of the land thereafter will be presumed to be in subordination to such title, unless held adversely to such title for the statutory period. Purcell v. Williams, 220 N.C. 522, 17 S.E.2d 652 (1941).

There is no presumption that possession in subordination to the legal title is adverse, and when the title is thus claimed by adverse possession, or for seven years under color, the burden is upon him who relies thereon to prove possession. Bland v. Beasley, 145 N.C. 168, 58 S.E. 993 (1907).

Showing Required to Avoid Presumption of Subordination. - When defendant relied on a deed made to his ancestor as color of title, and on the adverse possession of others thereunder to ripen his title, it was necessary to show that their occupancy was under or connected with the deed under which he claimed, or the presumption would obtain that they were under the true title shown by plaintiff. Blue Ridge Land Co. v. Floyd, 167 N.C. 686, 83 S.E. 687 (1914).

When plaintiff in ejectment shows title to the locus in quo, and defendant claims title by adverse possession, the latter must establish such affirmative defense by the greater weight of the evidence; otherwise, under this section, defendants' occupation will be deemed to be under and in subordination to the legal title. Hayes v. Cotton, 201 N.C. 369, 160 S.E. 453 (1931).

Operation of Section Where Neither Party in Possession. - Where neither party is in possession, and defendants have not shown 20 years' possession, while the plaintiffs have shown the legal title, the law carries the seizin to the party having the legal title. Bland v. Beasley, 145 N.C. 168, 58 S.E. 993 (1907).

Burden of Establishing Title. - When both parties claim title to land, and each seeks an adjudication that he is the owner and is entitled to possession of the disputed property, each has the burden of establishing his title. Campbell v. Mayberry, 12 N.C. App. 469, 183 S.E.2d 867, cert. denied, 279 N.C. 726, 184 S.E.2d 883 (1971).

For additional cases as to burden and sufficiency of proof under this section, see Ruffin v. Overby, 105 N.C. 78, 11 S.E. 251 (1890); Bryan v. Spivey, 109 N.C. 57, 13 S.E. 766 (1891); Monk v. Wilmington, 137 N.C. 322, 49 S.E. 345 (1904); Bland v. Beasley, 145 N.C. 168, 58 S.E. 993 (1907); Fraley v. Fraley, 150 N.C. 501, 64 S.E. 381 (1909); State v. McDonald, 152 N.C. 802, 67 S.E. 762 (1910); Steward v. McCormick, 161 N.C. 625, 77 S.E. 761 (1913); Blue Ridge Land Co. v. Floyd, 171 N.C. 543, 88 S.E. 862 (1916); Virginia-Carolina Power Co. v. Taylor, 194 N.C. 231, 139 S.E. 381 (1927).

Where the parties claimed title from a common source, plaintiff's deed being the older but defendant's having been recorded first, and possession for many years was in defendant, there being no evidence of the plaintiff ever having had possession, this section did not apply. Mintz v. Russ, 161 N.C. 538, 77 S.E. 851 (1913).

Claim of Title Under Paper Writing More Than 30 Years Old. - This section does not declare that one who claims title relying merely on a paper writing more than 30 years old thereby acquires title to the land described in the instrument, nor does it establish title prima facie. Bowers v. Mitchell, 258 N.C. 80, 128 S.E.2d 6 (1962).

Deed as Evidence of Possession. - The offer of a deed dated 1935, together with evidence identifying the land described therein, constituted prima facie evidence of plaintiff's possession of the described lands within the time required by law to maintain an action for the recovery or possession of real property. Woodard v. Marshall, 14 N.C. App. 67, 187 S.E.2d 430 (1972).

Disability Exception Limited to Persons Having Right of Entry or Action. - Adverse possession relates only to the true title; hence, the exceptions in this statute as to those under disability can apply only to one having by virtue of his title a right of entry or of action. Berry v. Lumber Co., 141 N.C. 386, 54 S.E. 278 (1906).

Applied in Johnston v. Pate, 83 N.C. 110 (1880).

Cited in Monk v. Wilmington, 137 N.C. 322, 49 S.E. 345 (1904); Peterson v. Sucro, 101 F.2d 282 (4th Cir. 1939); Ownbey v. Parkway Properties, Inc., 222 N.C. 54, 21 S.E.2d 900 (1942); DeBruhl v. L. Harvey & Son Co., 250 N.C. 161, 108 S.E.2d 469 (1959); Walker v. Story, 253 N.C. 59, 116 S.E.2d 147 (1960).


§ 1-42.1. Certain ancient mineral claims extinguished in certain counties.

  1. Where it appears on the public records that the fee simple title to any oil, gas or mineral interests in an area of land has been severed or separated from the surface fee simple ownership of such land and such interest is not in actual course of being mined, drilled, worked or operated, or in the adverse possession of another, or that the record title holder of any such oil, gas or mineral interests has not listed the same for ad valorem tax purposes in the county in which the same is located for a period of ten (10) years prior to January 1, 1965, any person, having the legal capacity to own land in this State, who has on September 1, 1965 an unbroken chain of title of record to such surface estate of such area of land for fifty (50) years or more, and provided such surface estate is not in the adverse possession of another, shall be deemed to have a marketable title to such surface estate as provided in the succeeding subsections of this section, subject to such interests and defects as are inherent in the provisions and limitations contained in the muniments of which such chain of record title is formed.
  2. Such marketable title shall be held by such person and shall be taken by his successors in interest free and clear of any and all such fee simple oil, gas or mineral interests in such area of land founded upon any reservation or exception contained in an instrument conveying the surface estate in fee simple which was executed or recorded fifty (50) years or more prior to September 1, 1965, and such oil, gas or mineral interests are hereby declared to be null and void and of no effect whatever at law or in equity: Provided, however, that any such fee simple oil, gas or mineral interest may be preserved and kept effective by recording within two (2) years after September 1, 1965, a notice in writing duly sworn to and subscribed before an official authorized to take probate by G.S. 47-1, which sets forth the nature of such oil, gas or mineral interest and gives the book and page where recorded. Such notice shall be probated as required for registration of instruments by G.S. 47-14 and recorded in the office of the register of deeds of the county wherein such area of land, or any part thereof lies, and in the book therein kept or provided under the terms of G.S. 1-42 for the purpose of recording certain severances of surface and subsurface land rights, and shall state the name and address of the claimant and, if known, the name of the surface owner and also contain either such a description of the area of land involved as to make said property readily located thereby or due incorporation by reference of the recorded instrument containing the reservation or exception of such oil, gas or mineral interest. Such notice may be made and recorded by the claimant or by any other person acting on behalf of any claimant who is either under a disability, unable to assert a claim on his own behalf, or one of a class but whose identity cannot be established or is uncertain at the time of filing such notice of claim for record.
  3. This section shall be construed to effect the legislative purpose of facilitating land title transactions by extinguishing certain ancient oil, gas or mineral claims unless preserved by recording as herein provided. The oil, gas or mineral claims hereby extinguished shall include those of persons whether within or without the State, and whether natural or corporate, but shall exclude governmental claims, State or federal, and all such claims by reason of unexpired oil, gas or mineral releases.
  4. All oil, gas or mineral interests in lands severed or separated from the surface fee simple ownership must be listed for ad valorem taxes and notice of such interest must be filed in writing in the manner provided by G.S. 1-42.1(b) and recorded in the local registry in the book provided by G.S. 1-42 within two years from September 1, 1967, to be effective against the surface fee simple owner or creditors, purchasers, heirs or assigns of such owner. Subsurface oil, gas and mineral interests shall be assessed for ad valorem taxes as real property and such taxes shall be collected and foreclosed in the manner authorized by Chapter 105 of the General Statutes of North Carolina. The board of county commissioners shall publish a notice of this subsection in a newspaper published in the county or having general circulation in the county once a week for four consecutive weeks prior to September 1, 1967.

The provisions of this subsection shall apply to the following counties: Anson, Buncombe, Durham, Franklin, Guilford, Hoke, Jackson, Montgomery, Person, Richmond, Swain, Transylvania, Union, Wake and Warren.

History

(1965, c. 1072, s. 1; 1967, c. 905.)

Legal Periodicals. - For article, "Transferring North Carolina Real Estate Part I: How the Present System Functions," see 49 N.C.L. Rev. 413 (1971).

§ 1-42.2. Certain additional ancient mineral claims extinguished; oil, gas and mineral interests to be recorded and listed for taxation.

  1. Where it appears on the public records that the fee simple title to any oil, gas or mineral interests in an area of land has been severed or separated from the surface fee simple ownership of such land and such interest is not in actual course of being mined, drilled, worked or operated, or in the adverse possession of another, or that the record titleholder of any such oil, gas or mineral interests has not listed the same for ad valorem tax purposes in the county in which the same is located for a period of 10 years prior to January 1, 1971, any person, having the legal capacity to own land in this State, who has on September 1, 1971, an unbroken chain of title of record to such surface estate of such area of land for at least 50 years and provided such surface estate is not in the adverse possession of another, shall be deemed to have a marketable title to such surface estate as provided in the succeeding subsections of this section, subject to such interests and defects as are inherent in the provisions and limitations contained in the muniments of which such chain of record title is formed.
  2. Such marketable title shall be held by such person and shall be taken by his successors in interest free and clear of any and all such fee simple oil, gas or mineral interests in such area of land founded upon any reservation or exception contained in an instrument conveying the surface estate in fee simple which was executed or recorded at least 50 but not more than 56 years prior to September 1, 1971, and such oil, gas or mineral interests are hereby declared to be null and void and of no effect whatever at law or in equity: Provided, however, that any such fee simple oil, gas or mineral interest may be preserved and kept effective by recording within two years after September 1, 1971, a notice in writing duly sworn to and subscribed before an official authorized to take probate by G.S. 47-1, which sets forth the nature of such oil, gas or mineral interest and gives the book and page where recorded. Such notice shall be probated as required for registration of instruments by G.S. 47-14 and recorded in the office of the register of deeds of the county wherein such area of land, or any part thereof lies, and in the book therein kept or provided under the terms of G.S. 1-42 for the purpose of recording certain severances of surface and subsurface land rights, and shall state the name and address of the claimant and, if known, the name of the surface owner and also contain either such a description of the area of land involved as to make said property readily located thereby or due incorporation by reference of the recorded instrument containing the reservation or exception of such oil, gas or mineral interest. Such notice may be made and recorded by the claimant or by any other person acting on behalf of any claimant who is either under a disability, unable to assert a claim on his own behalf, or one of a class but whose identity cannot be established or is uncertain at the time of filing such notice of claim for record.
  3. This section shall be construed to effect the legislative purpose of facilitating land title transactions by extinguishing certain ancient oil, gas or mineral claims unless preserved by recording as herein provided. The oil, gas or mineral claims hereby extinguished shall include those of persons whether within or without the State, and whether natural or corporate, but shall exclude governmental claims, State or federal, and all such claims by reason of unexpired oil, gas or mineral releases.
  4. Within two years from November 1, 1971, all oil, gas or mineral interests in lands severed or separated from the surface fee simple ownership must be listed for ad valorem taxes and notice of such interest must be filed in writing in the manner provided by G.S. 1-42.2(b) and recorded in the local registry in the book provided by G.S. 1-42, to be effective against the surface fee simple owner or creditors, purchasers, heirs or assigns of such owner. Subsurface oil, gas and mineral interests shall be assessed for ad valorem taxes as real property and such taxes shall be collected and foreclosed in the manner authorized by Chapter 105 of the General Statutes of North Carolina. The board of county commissioners shall publish a notice of this subsection in a newspaper published in the county or having general circulation in the county once a week for four consecutive weeks prior to November 1, 1971.

The provisions of this subsection shall apply to the following counties: Rowan, Anson, Buncombe, Catawba, Davidson, Durham, Franklin, Guilford, Haywood, Hoke, Iredell, Jackson, Madison, Montgomery, Moore, Person, Richmond, Robeson, Scotland, Swain, Transylvania, Union, Wake, Warren and Yancey.

History

(1971, c. 235, s. 1; c. 855.)

§ 1-42.3. Additional ancient mineral claims extinguished in certain counties; oil, gas and mineral interests to be recorded and listed for taxation in such counties.

  1. Where it appears on the public records that the fee simple title to any oil, gas or mineral interests in an area of land has been severed or separated from the surface fee simple ownership of such land and such interest is not in actual course of being mined, drilled, worked or operated, or in the adverse possession of another, or that the record titleholder of any such oil, gas or mineral interests has not listed the same for ad valorem tax purposes in the county in which the same is located for a period of 10 years prior to January 1, 1974, any person having the legal capacity to own land in this State, who has on September 1, 1974, an unbroken chain of title of record to such surface estate of such area of land for at least 50 years and provided such surface estate is not in the adverse possession of another, shall be deemed to have a marketable title to such surface estate as provided in the succeeding subsections of this section, subject to such interests and defects as are inherent in the provisions and limitations contained in the muniments of which such chain of record title is formed.
  2. Such marketable title shall be held by such person and shall be taken by his successors in interest free and clear of any and all such fee simple oil, gas or mineral interest in such area of land founded upon any reservation or exception contained in an instrument conveying the surface estate in fee simple which was executed or recorded at least 50 years or more prior to September 1, 1974, and such oil, gas or mineral interests are hereby declared to be null and void and of no effect whatever at law or in equity: Provided, however, that any such fee simple oil, gas or mineral interest may be preserved and kept effective by recording within two years after September 1, 1974, a notice in writing duly sworn to and subscribed before an official authorized to take probate by G.S. 47-1, which sets forth the nature of such oil, gas or mineral interest and gives the book and page where recorded. Such notice shall be probated as required for registration of instruments by G.S. 47-14 and recorded in the office of the register of deeds of the county wherein such area of land, or any part thereof lies, and in the book therein kept or provided under the terms of G.S. 1-42 for the purpose of recording certain severances of surface and subsurface land rights, and shall state the name and address of the claimant and, if known, the name of the surface owner and also contain either such a description of the area of land involved as to make said property readily located thereby or due incorporation by reference of the recorded instrument containing the reservation or exception of such oil, gas or mineral interest. Such notice may be made and recorded by the claimant or by any other person acting on behalf of any claimant who is either under a disability, unable to assert a claim on his own behalf, or one of a class but whose identity cannot be established or is uncertain at the time of filing such notice of claim for record.
  3. This section shall be construed to effect the legislative purpose of facilitating land title transactions by extinguishing certain ancient oil, gas or mineral claims unless preserved by recording as herein provided. The oil, gas or mineral claims hereby extinguished shall include those of persons whether within or without the State, and whether natural or corporate, but shall exclude governmental claims, State or federal, and all such claims by reason of unexpired oil, gas or mineral releases.
  4. Within two years from November 1, 1974, all oil, gas or mineral interest in lands severed or separated from the surface fee simple ownership must be listed for ad valorem taxes and notice of such interest must be filed in writing in the manner provided by G.S. 1-42.3(b) and recorded in the local registry in the book provided by G.S. 1-42, to be effective against the surface fee simple owner or creditors, purchasers, heirs or assigns of such owner. Subsurface oil, gas and mineral interests shall be assessed for ad valorem taxes as real property and such taxes shall be collected and foreclosed in the manner authorized by Chapter 105 of the General Statutes of North Carolina. The board of county commissioners shall publish a notice of this subsection in a newspaper published in the county or having general circulation in the county once a week for four consecutive weeks prior to November 1, 1974.

The provisions of this subsection shall apply to the following counties: Alleghany, Burke, Caldwell, Cherokee, Clay, Cleveland, Gaston, Gates, Graham, Halifax, Henderson, Macon, McDowell, Mitchell, Polk, Randolph, Stanly, Surry, Watauga, and Wilkes.

History

(1973, c. 1435; 1981, c. 329, s. 2.)

§ 1-42.4. Additional ancient mineral claims extinguished in Ashe County; oil, gas and mineral interests to be recorded and listed for taxation.

  1. Where it appears on the public records that the fee simple title to any oil, gas or mineral interest in an area of land has been severed or separated from the surface fee simple ownership of such land and such interest is not in actual course of being mined, drilled, worked or operated, or in the adverse possession of another, or that the record titleholder of any such oil, gas or mineral interest has not listed the same for ad valorem tax purposes in the county in which the same is located for a period of 10 years prior to January 1, 1977, any person having the legal capacity to own land in this State, who has on September 1, 1977, an unbroken chain of title of record to such surface estate of such area of land for at least 50 years, and provided such surface estate is not in the adverse possession of another, shall be deemed to have a marketable title to such surface estate as provided in the succeeding subsections of this section, subject to such interests and defects as are inherent in the provisions and limitations contained in the muniments of which such chain of record title is formed.
  2. Such marketable title shall be held by such person and shall be taken by his successors in interest free and clear of any and all such fee simple oil, gas or mineral interests in such area of land founded upon any reservation or exception contained in an instrument conveying the surface estate in fee simple which was executed or recorded at least 50 years or more prior to September 1, 1977, and such oil, gas or mineral interests are hereby declared to be null and void and of no effect whatever at law or in equity: Provided, however, that any such fee simple oil, gas or mineral interest may be preserved and kept effective by recording within two years after September 1, 1977, a notice in writing duly sworn to and subscribed before an official authorized to take probate by G.S. 47-1, which sets forth the nature of such oil, gas or mineral interest and gives the book and page where recorded. Such notice shall be probated as required for registration of instruments by G.S. 47-14 and recorded in the office of the register of deeds of the county wherein such area of land or any part thereof lies, and in the book therein kept or provided under the terms of G.S. 1-42 for the purpose of recording certain severances of surface and subsurface land rights, and shall state the name and address of the claimant and, if known, the name of the surface owner and also contain either such a description of the area of land involved as to make said property readily located thereby or due incorporation by reference of the recorded instrument containing the reservation or exception of such oil, gas or mineral interest. Such notice may be made and recorded by the claimant or by any other person acting on behalf of any claimant who is either under a disability, unable to assert a claim on his own behalf, or one of a class but whose identity cannot be established or is uncertain at the time of filing such notice of claim for record.
  3. This section shall be construed to effect the legislative purpose of facilitating land title transactions by extinguishing certain ancient oil, gas or mineral claims unless preserved by recording as herein provided. The oil, gas or mineral claims hereby extinguished shall include those of persons whether within or without the State, and whether natural or corporate, but shall exclude governmental claims, State or federal, and all such claims by reason of unexpired oil, gas or mineral releases.
  4. Within two years from November 1, 1977, all oil, gas or mineral interests in lands severed or separated from the surface fee simple ownership must be listed for ad valorem taxes and notice of such interests must be filed in writing in the manner provided by G.S. 1-42.4(b) and recorded in the local registry in the book provided by G.S. 1-42, to be effective against the surface fee simple owner or creditors, purchasers, heirs or assigns of such owner. Subsurface oil, gas and mineral interests shall be assessed for ad valorem taxes as real property and such taxes shall be collected and foreclosed in the manner authorized by Chapter 105 of the General Statutes of North Carolina. The board of county commissioners shall publish a notice of this subsection in a newspaper published in the county or having general circulation in the county once a week for four consecutive weeks prior to November 1, 1977. The provisions of this subsection shall apply to the following county: Ashe.

History

(1977, c. 751.)

§ 1-42.5. Additional ancient mineral claims extinguished in Avery County; oil, gas and mineral interests to be recorded in such county.

  1. Where it appears on the public records that the fee simple title to any oil, gas or mineral interest in an area of land has been severed or separated from the surface fee simple ownership of such land and such interest is not in actual course of being mined, drilled, worked or operated, or in the adverse possession of another, any person having legal capacity to own land in this State, who has an unbroken chain of title of record to such surface estate of such area of land for at least 30 years and provided such surface estate is not in the adverse possession of another, shall be deemed to have a marketable title to such surface estate as provided in the succeeding subsections of this section, subject to such interests and defects as are inherent in the provisions and limitations contained in the muniments of which such chain of record title is formed.
  2. Such marketable title shall be held by such person and shall be taken by his successors in interest free and clear of any and all such fee simple oil, gas or mineral interest in such area of land, the existence of which depends upon any reservation or exception contained in an instrument conveying the surface estate in fee simple which was recorded prior to such 30-year period, and such oil, gas or mineral interests are hereby declared null and void and of no effect whatever at law or in equity: Provided, however, that any such fee simple oil, gas or mineral interest may be preserved and kept effective by recording within such 30-year period, a notice in writing duly sworn to and subscribed before an official authorized to take probate by G.S. 47-1, which sets forth the nature of such oil, gas or mineral interest and gives the book and page where recorded. Such notice shall be probated as required for registration of instruments by G.S. 47-14 and recorded in the office of the register of deeds of the county wherein such area of land, or any part thereof lies, and in the book thereof kept or provided under the terms of G.S. 1-42 for the purpose of recording certain severances of surface and subsurface land rights, and shall state the name and address of the claimant, and the name of the surface owner and also contain either such a description of the area of land involved as to make said property readily located thereby or due incorporation by reference of the recorded instrument containing the reservation or exception of such oil, gas or mineral interest. Such notice may be made and recorded by the claimant or by any other person acting on behalf of any claimant who is either under a disability, unable to assert a claim on his own behalf, or one of a class but whose identity cannot be established or is uncertain at the time of filing such notice of claim for record.
  3. This section shall be construed to effect the legislative purpose of facilitating land title transactions by extinguishing certain ancient oil, gas or mineral claims unless preserved by recording as herein provided. The oil, gas or mineral claims hereby extinguished shall include those of persons whether within or without the State, and whether natural or corporate, but shall exclude governmental claims, State or federal, and all such claims by reason of unexpired oil, gas or mineral releases.
  4. The board of county commissioners shall publish a notice of this section within 90 days after the ratification date, and within 90 days prior to June 30, 1982. Such notice shall be published once per week for four consecutive weeks in a newspaper published in the counties of Avery, Burke, Mitchell and Watauga, or a newspaper having general circulation in those counties.

The provisions of this section shall apply to the following county: Avery.

History

(1981, c. 329, s. 1.)

§ 1-42.6. Additional ancient oil, gas or mineral interests extinguished in Alleghany County; recording interests; listing interests for taxation.

  1. Where it appears on the public records that the fee simple title to any oil, gas or mineral interests in an area of land has been severed or separated from the surface fee simple ownership of such land and this interest is not in actual course of being mined, drilled, worked or operated, or in the adverse possession of another, or that the record titleholder of any oil, gas or mineral interests has not listed the same for ad valorem tax purposes in the county in which it is located for a period of 10 years prior to February 1, 1981, any person having the legal capacity to own land in this State who has on July 1, 1981, an unbroken chain of title of record to the surface estate of the area of land for at least 50 years, and provided the surface estate is not in the adverse possession of another, shall be deemed to have a marketable title to the surface estate as provided in the succeeding subsections of this section, subject to any interests and defects as are inherent in the provisions and limitations contained in the muniments that form the chain of record title.
  2. This marketable title shall be held by such person and shall be taken by his successors in interest free and clear of any and all fee simple oil, gas or mineral interests in the area of land founded upon any reservation or exception contained in an instrument conveying the surface estate in fee simple that was executed or recorded at least 50 years or more prior to July 1, 1981, and such oil, gas or mineral interests are hereby declared to be null and void and of no effect whatever at law or in equity: Provided, however, that any fee simple oil, gas or mineral interest may be preserved and kept effective by recording within two years after July 1, 1981, a notice in writing duly sworn to and subscribed before an official authorized to take probate by G.S. 47-1, which sets forth the nature of the oil, gas or mineral interest and gives the book and page where recorded. This notice shall be probated as required for registration of instruments by G.S. 47-14 and recorded in the office of the register of deeds of the county wherein the area of land, or any part thereof lies, and in the book therein kept or provided under the terms of G.S. 1-42 for the purpose of recording certain severances of surface and subsurface land rights, and shall state the name and address of the claimant and, if known, the name of the surface owner and also contain either such a description of the area of land involved as to make the property readily located thereby or due incorporation by reference of the recorded instrument containing the reservation or exception of such oil, gas or mineral interest. The notice may be made and recorded by the claimant or by any other person acting on behalf of any claimant who is either under a disability, unable to assert a claim on his own behalf, or one of a class but whose identity cannot be established or is uncertain at the time of filing such notice of claim for record.
  3. This section shall be construed to effect the legislative purpose of facilitating land title transactions by extinguishing certain ancient oil, gas or mineral claims unless preserved by recording as herein provided. The oil, gas or mineral claims hereby extinguished shall include those of persons whether within or without the State, and whether natural or corporate, but shall exclude governmental claims, State or federal, and all such claims by reason of unexpired oil, gas or mineral releases.
  4. Within two years from July 1, 1981, all oil, gas or mineral interests in lands severed or separated from the surface fee simple ownership must be listed for ad valorem taxes and notice of such interest must be filed in writing in the manner provided by G.S. 1-42.3(b) and recorded in the local registry in the book provided by G.S. 1-42 to be effective against the surface fee simple owner or creditors, purchasers, heirs or assigns of such owner. Subsurface oil, gas and mineral interests shall be assessed for ad valorem taxes as real property and such taxes shall be collected and foreclosed in the manner authorized by Chapter 105 of the General Statutes of North Carolina. The board of county commissioners shall publish a notice of this section within 180 days after May 6, 1981. Such notice shall be published once per week for four consecutive weeks in a newspaper published in the county, or a newspaper of general circulation in the county.

This section applies only to Alleghany County.

History

(1981, c. 333, ss. 1, 2.)

§ 1-42.7. Additional amount mineral claims extinguished in Chatham County; oil, gas and mineral interests to be recorded and listed for taxation.

  1. Where it appears on the public records that the fee simple title to any oil, gas or mineral interest in an area of land has been severed or separated from the surface fee simple ownership of such land and such interest is not in actual course of being mined, drilled, worked or operated, or in the adverse possession of another, or that the record titleholder of any such oil, gas or mineral interest has not listed the same for ad valorem tax purposes in the county in which the same is located for a period of 10 years prior to January 1, 1979, any person having the legal capacity to own land in this State, who has on September 1, 1979, an unbroken chain of title of record to such surface estate of such area of land for at least 50 years, and provided such surface estate is not in the adverse possession of another, shall be deemed to have a marketable title to such surface estate as provided in the succeeding subsections of this section, subject to such interests and defects as are inherent in the provisions and limitations contained in the muniments of which such chain of record title is formed.
  2. Such marketable title shall be held by such person and shall be taken by his successors in interest free and clear of any and all such fee simple oil, gas or mineral interests in such area of land founded upon any reservation or exception contained in an instrument conveying the surface estate in fee simple which was executed or recorded at least 50 years or more prior to September 1, 1979, and such oil, gas or mineral interests are hereby declared to be null and void and of no effect whatever at law or in equity: Provided, however, that any such fee simple oil, gas or mineral interest may be preserved and kept effective by recording within two years after September 1, 1979, a notice in writing duly sworn to and subscribed before an official authorized to take probate by G.S. 47-1, which sets forth the nature of such oil, gas or mineral interest and gives the book and page where recorded. Such notice shall be probated as required for registration of instruments by G.S. 47-14 and recorded in the office of the register of deeds of the county wherein such area of land or any part thereof lies, and in the book therein kept or provided under the terms of G.S. 1-42 for the purpose of recording certain severances of surface and subsurface land rights, and shall state the name and address of the claimant and, if known, the name of the surface owner and also contain either such a description of the area of land involved as to make said property readily located thereby or due incorporation by reference of the recorded instrument containing the reservation or exception of such oil, gas or mineral interest. Such notice may be made and recorded by the claimant or by any other person acting on behalf of any claimant who is either under a disability, unable to assert a claim on his own behalf, or one of a class but whose identity cannot be established or is uncertain at the time of filing such notice of claim for record.
  3. This section shall be construed to effect the legislative purpose of facilitating land title transactions by extinguishing certain ancient oil, gas or mineral claims unless preserved by recording as herein provided. The oil, gas or mineral claims hereby extinguished shall include those of persons whether within or without the State, and whether natural or corporate, but shall exclude governmental claims, State or federal, and all such claims by reason of unexpired oil, gas or mineral releases.
  4. Within two years from November 1, 1979, all oil, gas or mineral interests in land severed or separated from the surface fee simple ownership must be listed for ad valorem taxes and notice of such interests must be filed in writing in the manner provided by G.S. 1-42.5(b) and recorded in the local registry in the book provided by G.S. 1-42, to be effective against the surface fee simple owner or creditors, purchasers, heirs or assigns of such owner. Subsurface oil, gas and mineral interests shall be assessed for ad valorem taxes as real property and such taxes shall be collected and foreclosed in the manner authorized by Chapter 105 of the General Statutes of North Carolina. The board of county commissioners shall publish a notice of this subsection in a newspaper published in the county or having general circulation in the county once a week for four consecutive weeks prior to November 1, 1979.

This section shall apply to Chatham County only.

History

(1979, c. 343, ss. 1, 2.)

Editor's Note. - This section was enacted as G.S. 1-42.5 by Session Laws 1979, c. 343.


§ 1-42.8. Ancient mineral claims extinguished in Rutherford County; oil, gas and mineral interests to be recorded and listed for taxation.

  1. Where it appears on the public records that the fee simple title to any oil, gas or mineral interests in an area of land has been severed or separated from the surface fee simple ownership of such land, and this interest is not in actual course of being mined, drilled, worked or operated, or in the adverse possession of another; or that the record titleholder of any oil, gas or mineral interests has not listed the same for ad valorem tax purposes in the county in which it is located for a period of 10 years prior to February 1, 1982, any person having the legal capacity to own land in this State who has on September 1, 1982, an unbroken chain of title of record to the surface estate of the area of land for at least 50 years, and provided the surface estate is not in the adverse possession of another, shall be deemed to have a marketable title to the surface estate as provided in the succeeding subsections of this section, subject to any interests and defects as are inherent in the provisions and limitations contained in the muniments that form the chain of record title.
  2. This marketable title shall be held by such persons and shall be taken by his successors in interest free and clear of any and all fee simple, oil, gas or mineral interests in the area of land founded upon any reservation or exception contained in an instrument conveying the surface estate in fee simple that was executed or recorded at least 50 years or more prior to September 1, 1982, and such oil, gas or mineral interests are hereby declared to be null and void and of no effect whatever at law or in equity: Provided, however, that any fee simple oil, gas or mineral interest not already extinguished by existing laws may be preserved and kept effective by recording within two years after September 1, 1982, a notice in writing duly sworn to and subscribed before an official authorized to take probate by G.S. 47-1, which sets forth the nature of the oil, gas or mineral interest and gives the book and page where recorded. This notice shall be probated as required for registration of instruments by G.S. 47-14 and recorded in the office of the register of deeds of the county wherein the area of land, or any part thereof lies, and in the book therein kept or provided under the terms of G.S. 1-42 for the purpose of recording certain severances of surface and subsurface land rights, and shall state the name and address of the claimant and, if known, the name of the surface owner, and shall also contain either a sufficient description of the area of land involved as to make the property readily located or due incorporation by reference of the recorded instrument containing the reservation or exception of the oil, gas or mineral interest. The notice may be made and recorded by the claimant or by any other person acting on behalf of any claimant who is under a disability, unable to assert a claim on his own behalf, or one of a class but whose identity cannot be established or is uncertain at the time of filing the notice of claim for record.
  3. This section shall be construed to effect the legislative purpose of facilitating land title transactions by extinguishing certain ancient oil, gas or mineral claims unless preserved by recording as herein provided. The oil, gas or mineral claims hereby extinguished include those of persons whether within or without the State, and whether natural or corporate, but do not include governmental claims, State or federal, and all such claims by reason of unexpired oil, gas or mineral releases.
  4. Within two years from September 1, 1982, all oil, gas or mineral interests in lands severed or separated from the surface fee simple ownership must be listed for ad valorem taxes, and notice of this interest must be filed in writing in the manner provided by G.S. 1-42.3(b) and recorded in the local registry in the book provided by G.S. 1-42 to be effective against the surface fee simple owner or creditors, purchasers, heirs or assigns of such owner. Subsurface oil, gas and mineral interests shall be assessed for ad valorem taxes as real property and such taxes shall be collected and foreclosed in the manner authorized by Chapter 105 of the General Statutes of North Carolina.
  5. The board of county commissioners shall publish a notice of this section in a newspaper published in the county or having general circulation in the county once a week for four consecutive weeks prior to September 1, 1982.
  6. This act applies only to Rutherford County.

History

(1981 (Reg. Sess., 1982), c. 1391, s. 1.)

§ 1-42.9. Ancient mineral claims extinguished; oil, gas and mineral interests to be recorded and listed for taxation.

  1. Where it appears on the public records that the fee simple title to any oil, gas or mineral interests in an area of land has been severed or separated from the surface fee simple ownership of such land and such interest is not in actual course of being mined, drilled, worked or operated, or in the adverse possession of another, and that the record titleholder of any such oil, gas or mineral interests has not listed the same for ad valorem tax purposes in the county in which the same is located for a period of five years prior to January 1, 1986, any person, having the legal capacity to own land in this State, who has on January 1, 1986, an unbroken chain of title of record to the surface estate of the area of land for at least 30 years and provided the surface estate is not in the adverse possession of another, shall be deemed to have a marketable title to the fee estate as provided in the succeeding subsections of this section, subject to the interests and defects as are inherent in the provisions and limitations contained in the muniments of which the chain of record is formed.
  2. This marketable title shall be held by such person and shall be taken by his successors in interest free and clear of any and all fee simple oil, gas or mineral interests in the area of land founded upon any reservation or exception contained in an instrument conveying the surface estate in fee simple that was executed or recorded at least 30 years or more prior to January 1, 1986, and such oil, gas or mineral interests are hereby declared to be null and void and of no effect whatever at law or in equity. Provided, however, that any fee simple oil, gas or mineral interest may be preserved and kept effective by recording within two years after January 1, 1986, a notice in writing duly sworn to and subscribed before an official authorized to take probate by G.S. 47-1, which sets forth the nature of the oil, gas or mineral interest and gives the book and page where recorded. This notice shall be probated as required for registration of instruments by G.S. 47-14 and recorded in the office of the register of deeds of the county wherein the area of land, or any part thereof lies, and in the book therein kept or provided under the terms of G.S. 1-42 for the purpose of recording certain severances of surface and subsurface land rights, and shall state the name and address of the claimant and, if known, the name of the surface owner and also contain either such a description of the area of land involved as to make the property readily located thereby or due incorporation by reference of the recorded instrument containing the reservation or exception of such oil, gas or mineral interest. The notice may be made and recorded by the claimant, by any person authorized by the claimant to act on his behalf, or by any person acting on behalf of any claimant who is under a disability, unable to assert a claim on his own behalf, or one of a class whose identity cannot be established or is uncertain at the time of filing such notice of claim for record.
  3. This section shall be construed to effect the legislative purpose of facilitating land title transactions by extinguishing certain ancient oil, gas or mineral claims unless preserved by recording as herein provided. The oil, gas or mineral claims hereby extinguished shall include those of persons whether within or without the State, and whether natural or corporate, but shall exclude governmental claims, State or federal, and all such claims by reason of unexpired oil, gas or mineral leases.
  4. Within two years from January 1, 1986, all oil, gas or mineral interests in lands severed or separated from the surface fee simple ownership and forfeitable under the terms of G.S. 1-42.9(b) must be listed for ad valorem taxes, and notice of this interest must be filed in writing in the manner provided by G.S. 1-42.9(b) and recorded in the local registry in the book provided by G.S. 1-42 to be effective against the surface fee simple owner or creditors, purchasers, heirs or assigns of such owner. Subsurface oil, gas and mineral interests shall be assessed for ad valorem taxes as real property and such taxes shall be collected and foreclosed in the manner authorized by Chapter 105 of the General Statutes of North Carolina.
  5. The board of county commissioners shall publish a notice of this section in a newspaper published in the county or having general circulation in the county once a week for four consecutive weeks prior to January 1, 1986.
  6. This section applies to a county that failed to publish a notice as required by subsection (e) but that published a notice of this section in a newspaper having general circulation in the county once a week for four consecutive weeks prior to January 1, 1986. In applying this section to that county, however, the date "1984" shall be substituted for the date "1983" each time it appears in this section.

History

(1983, c. 502; 1983 (Reg. Sess., 1984), c. 1096, ss. 1-3; 1985, c. 160; c. 573, s. 1.)

Cross References. - As to railway corridor preservation, see G.S. 136-44.36A.

Editor's Note. - Session Laws 1985, c. 573, s. 2, provided for the non-revival of any interest previously extinguished under the provisions of G.S. 1-42.1 through 1-42.8 and 1-42.9, and did not extend the time established in Session Laws 1983, c. 502, for preserving and keeping effective certain fee simple interests in oil, gas, or minerals. Session Laws 1983, c. 502, s. 2, also contained similar non-revival language.


§ 1-43. Tenant's possession is landlord's.

When the relation of landlord and tenant has existed, the possession of the tenant is deemed the possession of the landlord, until the expiration of twenty years from the termination of the tenancy; or where there has been no written lease, until the expiration of twenty years from the time of the last payment of rent, notwithstanding that the tenant may have acquired another title, or may have claimed to hold adversely to his landlord. But such presumptions shall not be made after the periods herein limited.

History

(C.C.P., s. 26; Code, s. 147; Rev., s. 387; C.S., s. 433.)

Cross References. - As to provisions concerning landlords and tenants generally, see G.S. 42-1 et seq.

CASE NOTES

Presumption Limited to Statutory Period. - The presumption which attaches to the possession of a tenant following the termination of tenancy is only a presumption for the periods limited in the statute, and after the expiration of such periods, the presumption no longer exists. Melvin v. Waddell, 75 N.C. 361 (1876); Virginia-Carolina Power Co. v. Taylor, 191 N.C. 329, 131 S.E. 646 (1926).

Section Does Not Apply Where Tenant's Claim Is Based on Landlord's Title. - The rule that the possession of the tenant is possession of the landlord, precluding adverse possession by the tenant without first surrendering the possession he has under the lease, obtains only when the tenant seeks to assert a title adverse to that of the landlord or assumes an attitude of hostility to his title or claim of title. Such rule does not obtain where the tenant, or those claiming under him, do not assert title hostile to that of the landlord, but are acknowledging, asserting and relying upon that title, as acquired by them in due course. The strength of the landlord's title is the foundation of their claim. Lofton v. Barber, 226 N.C. 481, 39 S.E.2d 263 (1946).

Loyalty Is to Title and Not to Landlord. - The rule that a tenant's possession is the possession of the landlord and that a tenant under a lease may not maintain an action against his landlord involving title during the period of the lease without first surrendering the possession he has under the lease does not apply where, after the renting, the title of the landlord has terminated or has been transferred either to a third person or to the tenant himself, for under the doctrine as it now prevails, the loyalty required is to the title, not to the person of the landlord. Lofton v. Barber, 226 N.C. 481, 39 S.E.2d 263 (1946).

Where tenant acquired the title of his landlord, the tenant's leasehold estate was merged in the greater estate conveyed by his deed, and thereafter he was under no obligation to recognize his former landlord as such or to surrender possession to him before asserting the title thus acquired. Lofton v. Barber, 226 N.C. 481, 39 S.E.2d 263 (1946).

Parol Gift as Rebuttal of Tenancy. - A parol gift of land will not convey title, but it will rebut the idea of tenancy, so that possession under it will ripen into title if continued for 20 years. Wilson v. Wilson, 125 N.C. 525, 34 S.E. 685 (1897); Dean v. Gupton, 136 N.C. 141, 48 S.E. 576 (1904).

As to effect of eviction under legal process and reentry, see Pate v. Turner, 94 N.C. 47 (1886).

Surrender of Possession by Tenant Prior to Maintaining Action Involving Title. - A tenant under a lease may not maintain an action against his lessor involving title during the period of the lease without first surrendering the possession he has under the lease. Abbott v. Cromartie, 72 N.C. 292 (1875); Lawrence v. Eller, 169 N.C. 211, 85 S.E. 291 (1915).

Judgment Where Landlord Fails to Prove Title. - Where plaintiff landlord fails to show any title in himself, and relies entirely on estoppel by this section, the judgment should be limited to a recovery of the possession, leaving the tenant free to assert any title he may have in another action. Benton v. Benton, 95 N.C. 559 (1886).

Competency of Evidence Respecting Tenancy. - Where a defendant in partition proceedings claims title by adverse possession, evidence that defendant entered as a tenant is competent. Alexander v. Gibbon, 118 N.C. 796, 24 S.E. 748 (1896); Shannon v. Lamb, 126 N.C. 38, 35 S.E. 232 (1900); Hatcher v. Hatcher, 127 N.C. 200, 37 S.E. 207 (1900); Bullock v. Bullock, 131 N.C. 29, 42 S.E. 458 (1902).

Evidence Held Insufficient to Show Entry Under Title of Another. - Evidence that a tenant in common with defendant in ejectment claiming the locus in quo by adverse possession paid rent to another, prior to the existence of the cotenancy, was not evidence that defendant entered into possession under the title of such other person. Virginia-Carolina Power Co. v. Taylor, 191 N.C. 329, 131 S.E. 646 (1926).

Cited in Day v. Howard, 73 N.C. 1 (1875); Melvin v. Waddell, 75 N.C. 361 (1876); Conwell v. Mann, 100 N.C. 234, 6 S.E. 782 (1888); Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142 (1889); McNeill v. Fuller, 121 N.C. 209, 28 S.E. 299 (1897); Roscoe v. John L. Roper Lumber Co., 124 N.C. 42, 32 S.E. 389 (1899); Prevatt v. Harrelson, 132 N.C. 250, 43 S.E. 800 (1903); Moore v. Miller, 179 N.C. 396, 102 S.E. 627 (1920); Pitman v. Hunt, 197 N.C. 574, 150 S.E. 13 (1929); Nichols v. York, 219 N.C. 262, 13 S.E.2d 565 (1941); Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692 (1952).


§ 1-44. No title by possession of right-of-way.

No railroad, plank road, turnpike or canal company may be barred of, or presumed to have conveyed, any real estate, right-of-way, easement, leasehold, or other interest in the soil which has been condemned, or otherwise obtained for its use, as a right-of-way, depot, station house or place of landing, by any statute of limitation or by occupation of the same by any person whatever.

History

(R.C., c. 65, s. 23; C.C.P., s. 29; Code, s. 150; Rev., s. 388; C.S., s. 434.)

Legal Periodicals. - For comment on the acquisition, abandonment, and preservation of rail corridors in North Carolina, see 75 N.C.L. Rev. 1989 (1997).

CASE NOTES

Purpose of Section. - The provisions of this section are justified upon the ground that the right-of-way is dedicated to a public use and for this reason is protected against loss by adverse possession. One using the right-of-way is at most a permissive licensee. Carolina Cent. R.R. v. McCaskill, 94 N.C. 746 (1886); Railroad v. Olive, 142 N.C. 257, 55 S.E. 263 (1906); Muse v. Seaboard Air Line Ry., 149 N.C. 443, 63 S.E. 102 (1908).

Plain words of this section do not require that a railroad actually use land; the railroad need only have "obtained for its use" the land for a railroad purpose. McLaurin v. Winston-Salem Southbound Ry., 323 N.C. 609, 374 S.E.2d 265 (1988).

Loss of Railroad Right-of-Way by Occupation Precluded. - When a railroad has acquired and entered upon the enjoyment of its easement, the further appropriation and use by it of the right-of-way for necessary railroad business may not be destroyed or impaired by reason of the occupation of it by the owner or any other person. Keziah v. Seaboard Air Line R.R., 272 N.C. 299, 158 S.E.2d 539 (1968).

Once title of railroad to a right-of-way is acquired, it cannot be lost by occupancy as to any part of it by the lapse of time. Carolina Cent. R.R. v. McCaskill, 94 N.C. 746 (1886); Purifoy v. Richmond & D.R.R., 108 N.C. 100, 12 S.E. 741 (1891).

Under this section, possession by defendants of land covered by right-of-way could not operate as a bar to or be the basis for any presumption of abandonment by the railroad of its right-of-way. Railroad v. Olive, 142 N.C. 257, 55 S.E. 263 (1906).

Section Inapplicable Until Right-of-Way Is Acquired. - Before this section can apply, the company must have secured or acquired the right-of-way either by condemnation or otherwise, and an executory contract to convey is not sufficient to meet the requirement. Even if an instrument is drawn for the purpose of making the conveyance, it must meet the formalities required of such an instrument or it will be deemed insufficient for the purpose of bringing it within the purview of this section. Beattie v. Carolina Cent. R.R., 108 N.C. 425, 12 S.E. 913 (1891). See also, May v. Atlantic C.L.R.R., 151 N.C. 388, 66 S.E. 310 (1909).

Loss of Executory Grant of Right-of-Way. - The grant to a railroad company of an undefined or "floating" right-of-way is of an executory nature, and where no consideration has been paid by the company, the right may be lost by lapse of 10 years upon failure of entry and of location by the company. Willey v. Norfolk S.R.R., 96 N.C. 408, 1 S.E. 446 (1887); Hemphill v. Annis, 119 N.C. 514, 26 S.E. 152 (1896); May v. Atlantic C.L.R.R., 151 N.C. 388, 66 S.E. 310 (1909).

Allegation that railroad forfeited the protection of this section by not using or planning to use land for purposes set forth in the statute was without merit. McLaurin v. Winston-Salem Southbound Ry., 323 N.C. 609, 374 S.E.2d 265 (1988).

Railroad Company Not Estopped From Closing Crossing. - Trial court did not err in granting a railroad company summary judgment in a landowner's trespass action because the continued use of a crossing by the landowners and its predecessor in interest since the 1940's could not estop the company from closing the crossing after it determined that the crossing interfered with the use of the railroad; a railroad has the authority and ability to expand its use of a right-of-way to manage safety risks. Schwarz & Schwarz, LLC v. Caldwell County R.R. Co., 197 N.C. App. 609, 677 S.E.2d 546 (2009), review denied, 363 N.C. 856, 694 S.E.2d 391, 2010 N.C. LEXIS 212 (2010).

Application of Section Where Grant Presumed by Charter. - Where a company acquired an easement by a provision of its charter and not by condemnation or purchase, it would seem that the principle of this section applies, so that although a part of its right-of-way might be used by the owner it has a right of entry whenever it needs the property for its use. Carolina Cent. R.R. v. McCaskill, 94 N.C. 746 (1886); Raleigh & Augusta Air Line R.R. v. Sturgeon, 120 N.C. 225, 26 S.E. 779 (1897); Railroad v. Olive, 142 N.C. 257, 55 S.E. 263 (1906); Earnhardt v. Southern Ry., 157 N.C. 358, 72 S.E. 1062 (1911).

No Effect on Power of State or Municipality to Require Grade Change. - This section does not affect the State or a municipality in the assertion of its right to require a railroad company to change the grade of its roadbed where it is crossed by streets, so that public travel and drainage may not be impeded. Atlantic C.L.R.R. v. City of Goldsboro, 155 N.C. 356, 71 S.E. 514 (1911), aff'd, 232 U.S. 548, 34 S. Ct. 364, 58 L. Ed. 721 (1914).

Section Not Applicable to Condemnation by Municipalities. - An incorporated city or town may obtain title to streets located upon the right-of-way of a railroad company by long and continuous, open, and adverse use thereof for such purpose, and where the city has so used the land for a long period of time there is a presumption of an original condemnation by the city, and this section has no application as to the rights of municipalities to acquire the land. In re Assessment Against Property of S. Ry., 196 N.C. 756, 147 S.E. 301 (1929).

Fact that others own the fee in the right-of-way and that such ownership is indicated by deed or map appearing in the public registry presents no evidence of probative force that the right-of-way does not belong to the railroad, since it only has an easement which it may exercise to the full extent when in its judgment the necessities of its business so require. Keziah v. Seaboard Air Line R.R., 272 N.C. 299, 158 S.E.2d 539 (1968).

As to effect of permitting improvements, see Carolina Cent. R.R. v. McCaskill, 94 N.C. 746 (1886).

Applied in Withers v. Long Mfg. Co., 259 N.C. 139, 129 S.E.2d 886 (1963).

Cited in Town of Durham v. Richmond & D.R.R., 104 N.C. 261, 10 S.E. 208 (1889); Purifoy v. Richmond & D.R.R., 108 N.C. 100, 12 S.E. 741 (1891); Bass v. Roanoke Nav. & Waterpower Co., 111 N.C. 439, 16 S.E. 402 (1892); Loven v. Parson, 127 N.C. 301, 37 S.E. 271 (1900).


§ 1-44.1. Presumption of abandonment of railroad right-of-way.

Any railroad which has removed its tracks from a right-of-way and has not replaced them in whole or in part within a period of seven (7) years after such removal and which has not made any railroad use of any part of such right-of-way after such removal of tracks for a period of seven (7) years after such removal, shall be presumed to have abandoned the railroad right-of-way.

History

(1955, c. 657.)

Legal Periodicals. - For comment on the acquisition, abandonment, and preservation of rail corridors in North Carolina, see 75 N.C.L. Rev. 1989 (1997).

CASE NOTES

Construction. - Court declined to expand the law of railroad easement abandonment in North Carolina to include conveyance of part or all of the easement to another party, even another railroad operator, under G.S. 1-44.1. City of Charlotte v. BMJ of Charlotte. LLC, 196 N.C. App. 1, 675 S.E.2d 59 (2009), review denied, 363 N.C. 800, 690 S.E.2d 533 (2010).

State and Federal Interrelationships. - Even if a railroad's right of way were to be considered abandoned according to G.S. 1-44.1, current federal law mandates that an abandonment of a railroad line that is part of an interstate rail network may be carried out only as authorized under Chapter 109 of the United States Code, 49 U.S.C.S. § 10903. City of Charlotte v. BMJ of Charlotte. LLC, 196 N.C. App. 1, 675 S.E.2d 59 (2009), review denied, 363 N.C. 800, 690 S.E.2d 533 (2010).

This section refers to abandonment of easements; it has no application to land owned in fee simple. McLaurin v. Winston-Salem Southbound Ry., 323 N.C. 609, 374 S.E.2d 265 (1988).


§ 1-44.2. Presumptive ownership of abandoned railroad easements.

  1. Whenever a railroad abandons a railroad easement, all right, title and interest in the strip, piece or parcel of land constituting the abandoned easement shall be presumed to be vested in those persons, firms or corporations owning lots or parcels of land adjacent to the abandoned easement, with the presumptive ownership of each adjacent landowner extending to the centerline of the abandoned easement. In cases where the railroad easement adjoins a public road right-of-way, the adjacent property owner's right, title and interest in the abandoned railroad easement shall extend to the nearest edge of the public road right-of-way.
  2. The presumption established by this section is rebuttable by showing that a party has good and valid title to the land.
  3. Repealed by Session Laws 1987 (Reg. Sess., 1988), c. 1071, s. 6.

The side boundaries of each parcel so presumptively vested in the adjacent property owner shall be determined by extending the side property lines of the adjacent parcels to the centerline of the abandoned easement, or as the case may be, the nearest edge of the public road right-of-way. In the event the side property lines of two adjacent property owners intersect before they meet the centerline or nearest edge of the public road right-of-way, as the case may be, such side property lines shall join and run together from the point of intersection to the centerline of the easement or nearest edge of the public road right-of-way, as the case may be, perpendicular to said centerline or edge.

History

(1987, c. 433, s. 1; 1987 (Reg. Sess., 1988), c. 1071, s. 6; 2004-203, s. 14.)

Cross References. - As to railway corridor preservation, see G.S. 136-44.36A.

Legal Periodicals. - For comment on the acquisition, abandonment, and preservation of rail corridors in North Carolina, see 75 N.C.L. Rev. 1989 (1997).

CASE NOTES

Constitutionality. - This section is unconstitutional as it applies to fee simple landowners in possession of disputed property, in that it fails to provide them with adequate notice, an opportunity to be heard, and with just compensation. McDonald's Corp. v. Dwyer, 111 N.C. App. 127, 432 S.E.2d 165, aff'd, 338 N.C. 445, 450 S.E.2d 888 (1994).

The first sentence of subsection (b) of this section is unconstitutional because it does not provide sufficient notice, an opportunity to be heard, and just compensation before divesting owner of a valuable property interest. The remaining portions of this section were not challenged and remain in full force and effect. McDonald's Corp. v. Dwyer, 338 N.C. 445, 450 S.E.2d 888 (1994).

Conclusive Presumption. - The first sentence of subsection (b) of this section that provides that persons claiming contrary to the presumption of subsection (a) must bring a lawsuit within one year of the enactment of the statute or the abandonment of the easement, whichever later occurs, or lose their right to rebut the presumption, turns a rebuttable presumption into a conclusive presumption which effectively takes a defendants' property without affording notice, an opportunity to be heard and just compensation. McDonald's Corp. v. Dwyer, 338 N.C. 445, 450 S.E.2d 888 (1994).

Public Road Right-of-Way Easement. - A public road right-of-way that was wholly within an abandoned railroad easement did not adjoin the easement and the second sentence of subsection (a) of this section did not apply. To adjoin, a tract must be "close to or in contact," "next to" or "touching." None of the definitions include a tract that is encompassed within another tract. Nelson v. Battle Forest Friends Meeting, 335 N.C. 133, 436 S.E.2d 122 (1993).

Applicable Only to Easements. - The Abandoned Railroad Easement Act applies only to easements, and not to fee interests. Love v. United States, 889 F. Supp. 1548 (E.D.N.C. 1994).

§ 1-45. No title by possession of public ways.

No person or corporation shall ever acquire any exclusive right to any part of a public road, street, lane, alley, square or public way of any kind by reason of any occupancy thereof or by encroaching upon or obstructing the same in any way, and in all actions, whether civil or criminal, against any person or corporation on account of an encroachment upon or obstruction or occupancy of any public way it shall not be competent for a court to hold that such action is barred by any statute of limitations.

History

(1891, c. 224; Rev., s. 389; C.S., s. 435.)

Legal Periodicals. - For comment, "Taking Without Compensation: Measure of Permanent Damages Modified by Application of Limitation of Actions for Trespass," see 20 Wake Forest L. Rev. 671 (1984).

For article, "The Battle to Preserve North Carolina's Estuarine Marshes: The 1985 Legislations, Private Claims to Estuarine Marshes, Denial of Permits to Fill, and the Public Trust," see 64 N.C.L. Rev. 565 (1986).

For comment on the acquisition, abandonment, and preservation of rail corridors in North Carolina, see 75 N.C.L. Rev. 1989 (1997).

For article, "The Law Is What It Is, But Is It Equitable? The Law of Encroachments Where the Innocent, Negligent, and Willful Are Treated the Same," see 39 Campbell L. Rev. 287 (2017).

CASE NOTES

Adverse Possession Ineffective Against Public Way, Square or Common. - Where there is a dedication and acceptance by the municipality or other governing body of public ways or squares and commons in this jurisdiction, the statute of limitations does not now run against the municipality or governing body. Steadman v. Pinetops, 251 N.C. 509, 112 S.E.2d 102 (1960).

Possession of a street by one claiming it adversely cannot divest or destroy the right of the public therein. State v. Godwin, 145 N.C. 461, 59 S.E. 132 (1907).

Adverse use of a part of a street dedicated to and accepted by the public cannot ripen title in the user when there has been an acceptance of the dedication of the street and no abandonment thereof on the part of the public. City of Salisbury v. Barnhardt, 249 N.C. 549, 107 S.E.2d 297 (1959).

It was error to find that landowners owned an unused part of a public street by adverse possession because, inter alia, the landowners were not permitted, under G.S. 1-45, to acquire possession of the property by adverse possession, as the property remained dedicated to public use. Town of Oriental v. Henry, 197 N.C. App. 673, 678 S.E.2d 703 (2009), review denied, 363 N.C. 813, 693 S.E.2d 353, N.C. LEXIS 82 (2010).

But Municipality Must Have Title or Rights Therein. - The rule that individuals may not acquire title to any part of a municipal street by encroaching upon or obstructing the same in any way does not apply when the evidence fails to show that the municipality had any title or rights therein. Hall v. City of Fayetteville, 248 N.C. 474, 103 S.E.2d 815 (1958).

Section Inapplicable Where Dedication Not Accepted. - The principle of law of this section applies only to such streets as the municipality has acquired and not to land offered to be dedicated by a private citizen for use as streets when such offer of dedication has not been accepted by the municipality before the offer has been unequivocally withdrawn. Gault v. Town of Lake Waccamaw, 200 N.C. 593, 158 S.E. 104 (1931).

Or Where Streets, etc., Are Abandoned. - This section does not apply to streets, alleys and parks that have been offered for dedication if the offer has not been accepted, or if the offer has been accepted but the streets, alleys or parks have been abandoned. Lee v. Walker, 234 N.C. 687, 68 S.E.2d 664 (1952); City of Salisbury v. Barnhardt, 249 N.C. 549, 107 S.E.2d 297 (1959).

Section Not Applicable to Property Conveyed to Trustees for Municipal Purposes. - Where property was conveyed to trustees for the benefit of members of the community for use as a community house or playground, this section did not apply. Carswell v. Creswell, 217 N.C. 40, 7 S.E.2d 58 (1940).

Effect of Adverse Possession Prior to Enactment of Section. - When sufficient adverse possession of a street of an unincorporated town by the present owners and those claiming under them had been shown for 35 years prior to the enactment of this section, the right of the town to the use of the street was barred by the statute of limitations. Tadlock v. Mizell, 195 N.C. 473, 142 S.E. 713 (1928).

Right to maintain a building on a navigable stream which obstructed operation of a county bridge could not be acquired by adverse user by virtue of this section. Lenoir County v. Crabtree, 158 N.C. 357, 74 S.E. 105 (1912).

Where county entered into possession of a square for the public use before enactment of this section, this section would not permit plaintiff to acquire title thereto by adverse possession under a deed purporting to convey a part thereof. Gates County v. Hill, 158 N.C. 584, 73 S.E. 804 (1912).

Acquisition of Right Superior to All Except State Not Prevented. - While this section prevents a person from acquiring an exclusive right to land, it does not prevent a person from acquiring a right superior to that of all other persons save the State. Saddle Club, Inc. v. Gibson, 9 N.C. App. 565, 176 S.E.2d 846 (1970).

Stipulation that certain land was within a right-of-way of the Highway Department indicated only that the State had a superior right, if it chose to exercise it, to the land. Saddle Club, Inc. v. Gibson, 9 N.C. App. 565, 176 S.E.2d 846 (1970).

Rights of the State do not preclude a person from acquiring actual, lawful possession, if the evidence is sufficient to support a finding of fact to that effect. Saddle Club, Inc. v. Gibson, 9 N.C. App. 565, 176 S.E.2d 846 (1970).

For cases decided under prior law, see Crump v. Mims, 64 N.C. 767 (1870); State v. Long, 94 N.C. 896 (1886); Moose v. Carson, 104 N.C. 431, 10 S.E. 689 (1889); Turner v. Commissioners of Hillsboro, 127 N.C. 153, 37 S.E. 191 (1900); Threadgill v. Town of Wadesboro, 170 N.C. 641, 87 S.E. 521 (1916).

Cited in Atlantic Coast Line R.R. v. Town of Dunn, 183 N.C. 427, 111 S.E. 724 (1922); Guilford County v. Hampton, 224 N.C. 817, 32 S.E.2d 606 (1945).


§ 1-45.1. No adverse possession of property subject to public trust rights.

Title to real property held by the State and subject to public trust rights may not be acquired by adverse possession. As used in this section, "public trust rights" means those rights held in trust by the State for the use and benefit of the people of the State in common. They are established by common law as interpreted by the courts of this State. They include, but are not limited to, the right to navigate, swim, hunt, fish, and enjoy all recreational activities in the watercourses of the State and the right to freely use and enjoy the State's ocean and estuarine beaches and public access to the beaches.

History

(1985, c. 277, s. 1.)

Legal Periodicals. - For comment, "Sunbathers Versus Property Owners: Public Access to North Carolina Beaches," see 64 N.C.L. Rev. 159 (1985).

For article, "The Battle to Preserve North Carolina's Estuarine Marshes: The 1985 Legislations, Private Claims to Estuarine Marshes, Denial of Permits to Fill, and the Public Trust," see 64 N.C.L. Rev. 565 (1986).

For article, "The Pearl in the Oyster: The Public Trust Doctrine in North Carolina," see 12 Campbell L. Rev. 23 (1989).

For article, "North Carolina Oceanfront Property and Public Waters and Beaches: The Rights of Littoral Owners in the Twenty-First Century," see 83 N.C. L. Rev. 1427 (2005).

For article, "Where Will You Go When the Well Runs Dry? Local Government Ownership and Water Allocation in North Carolina," see 32 Campbell L. Rev. 51 (2009).

CASE NOTES

Public Trust Rights. - The legislature recognized public trust rights in its legislative finding that the undeveloped natural areas on the North Carolina coast are vital to public trust rights such as hunting, fishing, navigation and recreation. Friends of Hatteras Island Nat'l Historic Maritime Forest Land Trust for Preservation, Inc. v. Coastal Resources Comm'n, 117 N.C. App. 556, 452 S.E.2d 337 (1995).

"Ocean beaches" of North Carolina include both the wet sand beaches, generally, but not exclusively, publicly owned, and the dry sand beaches, generally, but not exclusively, privately owned; the ocean beaches of North Carolina are subject to public trust rights unless those rights have been expressly abandoned by the State. Nies v. Town of Emerald Isle, 244 N.C. App. 81, 780 S.E.2d 187 (2015), appeal dismissed, 793 S.E.2d 699, 2016 N.C. LEXIS 1014 (2016), cert. denied, mot. granted, 138 S. Ct. 75, 2017 U.S. LEXIS 4978, 199 L. Ed. 2d 184 (U.S. 2017).

Because property owners had no right to exclude the public from public trust beaches, those portions of a town's ordinances regulating beach driving, even if construed as ordinances "allowing" beach driving, could not effectuate a Fifth Amendment taking; the right to prevent the public from enjoying the dry sand portion of the property was never part of the "bundle of rights" purchased by the owners. Nies v. Town of Emerald Isle, 244 N.C. App. 81, 780 S.E.2d 187 (2015), appeal dismissed, 793 S.E.2d 699, 2016 N.C. LEXIS 1014 (2016), cert. denied, mot. granted, 138 S. Ct. 75, 2017 U.S. LEXIS 4978, 199 L. Ed. 2d 184 (U.S. 2017).

It was error to grant a town judgment notwithstanding a verdict in a condemnation case on a theory that the public trust doctrine made the taking noncompensable because (1) the theory was not raised on directed verdict, (2) the sua sponte order was entered months after final judgment, and (3) the town was estopped from asserting the town possessed rights taken as the town's complaint said the town did not, the town did not raise the issue at an "all other issues" hearing, at which the town disavowed the public trust doctrine, the town did not immediately appeal a vital ruling that the town condemned the property, and landowners introduced a scintilla of supporting evidence. Town of Nags Head v. Richardson, 260 N.C. App. 325, 817 S.E.2d 874 (2018), aff'd, 372 N.C. 349, 828 S.E.2d 154, 2019 N.C. LEXIS 523 (2019).

Navigable Waters. - Trial court did not err in dismissing a landowner's action for trespass to enjoin an adjacent landowner from using canal waters held in trust by the State for the benefit of the public because the canal through which the adjacent landowner allegedly trespassed was navigable waters and was subject to the public trust doctrine; although the canal was man-made, it was a navigable waterway held by the State in trust for all citizens of North Carolina, and the adjacent landowner and other members of the public had used the canal for commercial purposes in excess of twenty years. Fish House, Inc. v. Clarke, 204 N.C. App. 130, 693 S.E.2d 208 (2010), review denied, 364 N.C. 324, 700 S.E.2d 750, 2010 N.C. LEXIS 596 (2010).

Controlling law of navigability concerning the body of water in its natural condition reflects only upon the manner in which the water flows without diminution or obstruction; therefore, any waterway, whether man-made or artificial, which is capable of navigation by watercraft constitutes "navigable water" under the public trust doctrine of North Carolina. Fish House, Inc. v. Clarke, 204 N.C. App. 130, 693 S.E.2d 208 (2010), review denied, 364 N.C. 324, 700 S.E.2d 750, 2010 N.C. LEXIS 596 (2010).

Trial court did not err in deciding that the waters of a canal were "navigable" because an adjacent landowner's standing was not an issue since she was not seeking monetary damages for interference with navigable waters but, rather, merely raised the doctrine as a defense to a landowner's trespass claim and to preserve the public's rights to the canal under the public trust doctrine; the adjacent landowner invoked the public trust doctrine in to ensure that the landowner did not prevent her from enjoying those rights, not to litigate the rights of the State; Fish House, Inc. v. Clarke, 204 N.C. App. 130, 693 S.E.2d 208 (2010), review denied, 364 N.C. 324, 700 S.E.2d 750, 2010 N.C. LEXIS 596 (2010).

Marina Association Entitled to Collect Dredge Assessment. - Marina association was entitled to collect a dredge assessment from the owners of a private boat slip at the dock of the marina because the submerged land underneath the owners' slip was not their private property, but was a common area, and the association was allowed to levy assessments for the maintenance of the common areas. Carolina Marlin Club Marina Ass'n v. Preddy, 238 N.C. App. 215, 767 S.E.2d 604 (2014).

Landowners failed to establish that the public trust doctrine under G.S. 1-45.1 applied to prevent real estate developers from imposing a lake access fee to a man-made lake because the fact that short, limited segments of a stream feeding into the lake could be traveled by canoe and kayak did not show that the stream was navigable. Bauman v. Woodlake Partners, LLC, 199 N.C. App. 441, 681 S.E.2d 819 (2009).

Applied in Newcomb v. County of Carteret, 207 N.C. App. 527, 701 S.E.2d 325 (2010), review denied 365 N.C. 212, 710 S.E.2d 26, 2011 N.C. LEXIS 474 (N.C. 2011).

Cited in Hyatt v. Town of Lake Lure, 191 N.C. App. 386, 663 S.E.2d 320 (2008); Town of Nags Head v. Cherry, Inc., 219 N.C. App. 66, 723 S.E.2d 156, dismissed, 732 S.E.2d 580, 2012 N.C. LEXIS 979, review denied, 733 S.E.2d 85, 2012 N.C. LEXIS 1164 (2012).

Opinions of Attorney General

Public Trust Rights Not Violated by Dam Reconstruction. - A proposed amendment of an existing conservation easement for Bass Lake to authorize the local town to reconstruct the breached dam and allow use of the recreated lake as a public park would not operate to adversely affect any public trust rights under G.S. 113-131 and this section. See opinion of Attorney General to Mr. Thomas Ashe Lockhart, Jr., The Sanford Holshouser Law Firm, 1998 N.C.A.G. 51 (12/12/98).

Citizens have the right to travel by "useful vessels" such as canoes and kayaks, "in the usual and ordinary mode" on waters which are in their natural condition capable of such use, without the consent of the owners of the shore. See opinion of Attorney General to Richard B. Whisnant, General Counsel, N. C. Department of Environment and Natural Resources, 1998 N.C.A.G. 5 (1/20/98).

ARTICLE 5. Limitations, Other Than Real Property.

Sec.

§ 1-46. Periods prescribed.

The periods prescribed for the commencement of actions, other than for the recovery of real property, are as set forth in this Article.

History

(C.C.P., s. 30; Code, s. 151; Rev., s. 390; C.S., s. 436.)

CASE NOTES

The purpose of a statute of limitations is to afford security against stale demands, not to deprive anyone of his just rights by lapse of time. Congleton v. City of Asheboro, 8 N.C. App. 571, 174 S.E.2d 870 (1970).

Statutes of limitations are inflexible and unyielding. They operate inexorably without reference to the merits of plaintiff's cause of action. They are statutes of repose, intended to require that litigation be initiated within the prescribed time or not at all. Congleton v. City of Asheboro, 8 N.C. App. 571, 174 S.E.2d 870 (1970).

Statutes of limitations are affirmative defenses available only to persons against whom an action is brought; they are not available to volunteers who intervene to assert some claimed right of their own. Northampton County Drainage Dist. No. 1 v. Bailey, 92 N.C. App. 68, 373 S.E.2d 560 (1988), rev'd in part and aff'd in part, 326 N.C. 742, 392 S.E.2d 352 (1990).

The court has no discretion when considering whether a claim is barred by the statute of limitations. A judge may not, in his discretion, interfere with the vested rights of a party where pleadings are concerned. Congleton v. City of Asheboro, 8 N.C. App. 571, 174 S.E.2d 870 (1970).

Right of Defendant to Rely on Statute as a Defense. - The statute of limitations operates to vest a defendant with the right to rely on the statute of limitations as a defense. Congleton v. City of Asheboro, 8 N.C. App. 571, 174 S.E.2d 870 (1970).

Waiver of Right to Plead Statute of Limitations. - Defendant intervenor waived his right to plead the statute of limitations as a matter of law by failing to assert that defense in a former action in which he paid assessments he subsequently claimed were barred. Northampton County Drainage Dist. No. 1 v. Bailey, 92 N.C. App. 68, 373 S.E.2d 560 (1988), rev'd in part and aff'd in part, 326 N.C. 742, 392 S.E.2d 352 (1990).

The statute of limitations relates only to the remedy, and the defendant is never afforded an opportunity of relying upon it until the plaintiff resorts to his remedy. Berry v. Corpening, 90 N.C. 395 (1884).

Statute of limitations does not run when there is no one in esse capable of suing. Grant v. Hughes, 94 N.C. 231 (1886).

As to the time for commencing an action when the period of limitation is changed by amendment, see Culbreth v. Downing, 121 N.C. 205, 28 S.E. 294 (1897). See also, Nichols v. Norfolk & C.R.R., 120 N.C. 495, 26 S.E. 643 (1897).

Actions to Which No Statutes of Limitations Apply. - There is no statute of limitations applicable to an action brought by citizens to test the validity of an election held relative to subscribing stock to a railroad company, but such action must be brought within a reasonable time. Jones v. Commissioners of Person County, 107 N.C. 248, 12 S.E. 69 (1890).

There is no statute applicable to the probate of wills. In re Will of Dupree, 163 N.C. 256, 79 S.E. 611 (1913).

Where a partner received firm money in winding up affairs of the partnership in pursuance of an agreement that he receive such funds, he held them in trust for the other partners and the statutes did not run. McNair v. Ragland, 7 N.C. 139 (1819).

Actions Involving Encroachments on Easements. - Trial court erred in granting summary judgment in favor of a utility company upon finding that its claim was barred by G.S. 1-50(a)(3) because the claim was subject to the twenty-year statute of limitations set forth in G.S. 1-40 because the company sought to recover full use of its easement, and because the easement was real property, the action was for the recovery of real property. Duke Energy Carolinas, LLC v. Gray, 369 N.C. 1, 789 S.E.2d 445 (2016).

Burden of Proof. - Where defendant sufficiently pleads the statute of limitations, the burden is upon plaintiff to show that his action was commenced within the time permitted by the statute. Jennings v. Morehead City, 226 N.C. 606, 39 S.E.2d 610 (1946).

Pleading of Statute Held Sufficient. - Defendant's allegations that plaintiff's cause of action on bond coupons had accrued more than 10 years prior to institution of the action and was barred under this section was a sufficient pleading of statute of limitations, even though no specific reference was made to the particular sections of the statute applicable. Jennings v. Morehead City, 226 N.C. 606, 39 S.E.2d 610 (1946).

Interaction with Other Statutes in Bail Case. - Trial court erred in ruling that G.S. 1-52 and 1-46 establish a statute of limitations of three years for an action involving bail and in failing to apply the "extraordinary cause" standard of former G.S. 15A-544(h) (see now G.S. 15A-544.1 et seq.) when petitioner sought remission of bonds. State v. Harkness, 133 N.C. App. 641, 516 S.E.2d 166 (1999).

Applied in Raftery v. Wm. C. Vick Constr. Co., 291 N.C. 180, 230 S.E.2d 405 (1976); Long v. Fink, 80 N.C. App. 482, 342 S.E.2d 557 (1986).

Cited in Campbell v. Brown, 86 N.C. 376 (1882); Copley v. Scarlett, 214 N.C. 31, 197 S.E. 623 (1938); Guilford County v. Hampton, 224 N.C. 817, 32 S.E.2d 606 (1945); Henderson v. Henderson, 232 N.C. 1, 59 S.E.2d 227 (1950); Shearin v. Lloyd, 246 N.C. 363, 98 S.E.2d 508 (1957); Thurston Motor Lines, Inc. v. GMC, 258 N.C. 323, 128 S.E.2d 413 (1962); Clardy v. Duke Univ., 299 F.2d 368 (4th Cir. 1962); Hager v. Brewer Equip. Co., 17 N.C. App. 489, 195 S.E.2d 54 (1973); Collins v. Edwards, 54 N.C. App. 180, 282 S.E.2d 559 (1981); Wells v. Barefoot, 55 N.C. App. 562, 286 S.E.2d 625 (1982); Matthews v. Johnson Publishing Co., 89 N.C. App. 522, 366 S.E.2d 525 (1988); Carlton v. Melvin, 205 N.C. App. 690, 697 S.E.2d 360 (2010); Amward Homes, Inc. v. Town of Cary, 206 N.C. App. 38, 698 S.E.2d 404 (2010).


§ 1-46.1. Twelve years.

Within 12 years an action -.

  1. No action for the recovery of damages for personal injury, death, or damage to property based upon or arising out of any alleged defect or any failure in relation to a product shall be brought more than 12 years after the date of initial purchase for use or consumption.
  2. Reserved for future codification purposes.

History

(2009-420, s. 2.)

Editor's Note. - The section as enacted by Session Laws 2009-420, s. 2, contained a subsection (a), but no subsection (b), and a subdivision (a)(1), but no subdivision (a)(2). The subsection (a) designation was deleted and subdivision (2) was set out as reserved at the direction of the Revisor of Statutes.

Session Laws 2009-420, s. 3, provides: "This act becomes effective October 1, 2009, and applicable to causes of action that accrue on or after that date. This act shall not affect the application of G.S. 1-50(a)(5). Nothing in this act is intended to change existing law relating to product liability actions based upon disease."

CASE NOTES

Editor's Note. - Most of the cases cited below were decided under former subdivision (a)(6) of G.S. 1-50, which provided a six-year limitation for these actions.

Constitutionality of Subdivision (6). - Although the North Carolina Supreme Court has yet to address the validity of subdivision (6), it has addressed the validity of paragraph (5)a, a companion provision dealing with defective or unsafe conditions resulting from an improvement to real property, and has found that statute valid (see Lamb v. Wedgewood S. Corp., 55 N.C. App. 686, 286 S.E.2d 876 (1982), modified and aff'd, 308 N.C. 419, 302 S.E.2d 868 (1983)). In addition, Bolick v. American Barmag Corp., 306 N.C. 364, 293 S.E.2d 415 (1982), by way of dicta, strongly indicated a similar result for subdivision (6). Brown v. GE Co., 584 F. Supp. 1305 (E.D.N.C. 1983), aff'd, 733 F.2d 1085 (4th Cir. 1984).

Subdivision (6) of this section is constitutional. Brown v. GE Co., 733 F.2d 1085 (4th Cir. 1984), cert. denied, 469 U.S. 858, 105 S. Ct. 189, 83 L. Ed. 2d 122 (1984); Colony Hill Condominium I Ass'n v. Colony Co., 70 N.C. App. 390, 320 S.E.2d 273 (1984), cert. denied, 312 N.C. 796, 325 S.E.2d 485 (1985); Davidson v. Volkswagenwerk, 78 N.C. App. 193, 336 S.E.2d 714 (1985), cert. denied, 316 N.C. 375, 342 S.E.2d 892 (1986); Davidson v. Volkswagenwerk, 78 N.C. App. 193, 336 S.E.2d 714 (1985), cert. denied, 316 N.C. 375, 342 S.E.2d 892 (1986).

Power of Legislature. - That the legislature has the authority to establish a condition precedent to what was originally a common-law cause of action is beyond question. The legislature created just such a condition precedent in subdivision (6) of this section. Bolick v. American Barmag Corp., 306 N.C. 364, 293 S.E.2d 415 (1982).

Legislative Intent. - Lam v. Wedgewood S. Corp., 308 N.C. 419, 302 S.E.2d 868 (1983), contains the correct interpretation of the legislature's intent in enacting the 1963 version of subdivision (5) of this section. Starkey v. Cimarron Apts., Inc., 70 N.C. App. 772, 321 S.E.2d 229 (1984), cert. denied, 312 N.C. 798, 325 S.E.2d 633 (1985).

The built-in "accrual" date language in subdivision (6) "initial purchase for use or consumption" is not unconstitutionally vague; the obvious intent of the legislature was to limit manufacturers' liability after a certain period of years had elapsed from the date of initial purchase for use or consumption. Tetterton v. Long Mfg. Co., 314 N.C. 44, 332 S.E.2d 67 (1985).

Subdivision (6) of this section is intended to be a substantive definition of rights which sets a fixed limit after the time of the product's manufacture beyond which the seller will not be held liable. Davidson v. Volkswagenwerk, 78 N.C. App. 193, 336 S.E.2d 714 (1985), cert. denied, 316 N.C. 375, 342 S.E.2d 892 (1986).

Public Policy. - As subdivision (6) of this section and G.S. 1-52(16) make clear, the public policy of this State is to protect North Carolina manufacturers and designers as well as the North Carolina courts from stale claims based on injuries occurring long after the purchase of an allegedly defective product and long after a defendant participated in its manufacture or design. Boudreau v. Baughman, 86 N.C. App. 165, 356 S.E.2d 907 (1987), rev'd in part, modified and aff'd in part, 322 N.C. 331, 368 S.E.2d 849 (1988).

The North Carolina General Assembly intended to establish a fixed cut-off date to bar actions brought after six years involving an injury caused by a manufactured good. A defendant escapes liability if the action is not brought within the six-year window provided by subdivision (6) of this section. Lindsay v. Public Serv. Co., 725 F. Supp. 278 (W.D.N.C. 1989), appeal dismissed, 732 F. Supp. 623 (W.D.N.C. 1990).

With No Exception for Failure to Warn. - The statute of repose in subdivision (6) of this section, as incorporated into the North Carolina products liability statute, Chapter 99B, anticipates that the statute includes any action brought for or on account of personal injury. Specifically, the statute includes those injuries caused by or resulting from a warning (or lack thereof). Thus, the statute of repose contains no exception for failure to warn. Lindsay v. Public Serv. Co., 725 F. Supp. 278 (W.D.N.C. 1989), appeal dismissed, 732 F. Supp. 623 (W.D.N.C. 1990).

Construction with Other Sections. - The clear and explicit intent of the legislature, as evidenced by the statutory language of the Products Liability Act itself, is to allow the statute of repose to be tolled if G.S. 1-17 applies. Bryant v. Adams, 116 N.C. App. 448, 448 S.E.2d 832 (1994), cert. denied, 339 N.C. 736, 454 S.E.2d 647 (1995).

Purpose of Subdivision (6). - Subdivision (6) of this section was enacted with Chapter 99B to provide a period of limitations for actions to which that Chapter applies. Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982).

Subdivision (6) excludes all actions brought after six years, whether these actions are first-party actions, cross-claims or counter-claims. Tetterton v. Long Mfg. Co., 314 N.C. 44, 332 S.E.2d 67 (1985).

Subdivision (6) of this section is intended to be a substantive definition of rights, as distinguished from a procedural limitation on the remedy used to enforce rights. Bolick v. American Barmag Corp., 306 N.C. 364, 293 S.E.2d 415 (1982).

Statutes such as subdivision (6) of this section, running from a time other than accrual of an action, are substantive rather than procedural limitations. Bolick v. American Barmag Corp., 306 N.C. 364, 293 S.E.2d 415 (1982).

Which Establishes An Outside Time Limit for Bringing Suit. - Subdivision (6) of this section does not extend the negligence statute of limitations from three to six years, but instead establishes an outside time limit for bringing a personal injury claim based upon a defective product. Bobbitt v. Tannewitz, 538 F. Supp. 654 (M.D.N.C. 1982).

Subdivision (6) as Statute of Repose. - Although labeled a statute of limitations, subdivision (6) of this section is more properly referred to as a statute of repose, in that it places a cap or outer limit on the time period within which a products liability action may be brought, irrespective of when the claim accrues. Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982).

Statutes such as subdivision (6) of this section have been denominated "statutes of repose" by commentators and practitioners because they set a fixed limit after the time of the product's manufacture, sale or delivery beyond which the seller will not be held liable. Bolick v. American Barmag Corp., 306 N.C. 364, 293 S.E.2d 415 (1982); Boudreau v. Baughman, 322 N.C. 331, 368 S.E.2d 849 (1988).

Subdivision (6) of this section is not a statute of limitation but is instead merely a "statute of repose" that places an outer limit on the time period within which a products liability action may be brought. Smith v. Cessna Aircraft Co., 571 F. Supp. 433 (M.D.N.C. 1983).

Statutes such as subdivision (6) of this statute have been denominated statutes of repose because they set a fixed limit after the time of the product's manufacture, sale, or delivery beyond which a plaintiff 's claim will not be recognized. Boudreau v. Baughman, 322 N.C. 331, 368 S.E.2d 849 (1988).

Statutes of Repose and Statutes of Limitation Compared. - The term "statute of repose" is used to distinguish ordinary statutes of limitation from those that begin to run at a time unrelated to the traditional accrual of the cause of action. This distinction corresponds to the distinction between procedural and substantive laws. Boudreau v. Baughman, 322 N.C. 331, 368 S.E.2d 849 (1988).

Ordinary statutes of limitation are clearly procedural, affecting only the remedy directly and not the right to recover. The statute of repose, on the other hand, acts as a condition precedent to the action itself. Boudreau v. Baughman, 322 N.C. 331, 368 S.E.2d 849 (1988).

Characterization of a statute of repose as a substantive definition of rights rather than a procedural limitation on the remedy used to enforce rights, holds true in the context of choice of law. When commencement of an action within a specified period is a condition precedent to relief, "the limitation period is considered to be so tied up with the underlying right that for choice of law purposes, the limitation clause is treated as a 'substantive' rule of law." Boudreau v. Baughman, 322 N.C. 331, 368 S.E.2d 849 (1988).

Statute of Repose Cannot Be Impaired by Later Retroactive Statute. - Once the 1963 version of this section barred the plaintiffs' suit, a subsequent statute could not revive it. A statute of repose, unlike an ordinary statute of limitations, defines substantive rights to bring an action. Filing within the time limit prescribed is a condition precedent to bringing the action. Failure to file within that period gives the defendant a vested right not to be sued. Such a vested right cannot be impaired by the retroactive effect of a later statute. Colony Hill Condominium I Ass'n v. Colony Co., 70 N.C. App. 390, 320 S.E.2d 273 (1984), cert. denied, 312 N.C. 796, 325 S.E.2d 485 (1985).

In enacting subdivision (5) of this section, the Legislature defined a liability of limited duration. Once the time limit on the plaintiffs' cause of action expired, the defendants were effectively "cleared" of any wrongdoing or obligation. If a court were to find that a later version of subdivision (5) of this section operates retrospectively, then it must revive a liability already extinguished, and not merely restore a lapsed remedy. Such a revival of the defendants' liability to suit, long after they have been statutorily entitled to believe it does not exist, and have discarded evidence and lost touch with witnesses, would be so prejudicial as to deprive them of due process. Colony Hill Condominium I Ass'n v. Colony Co., 70 N.C. App. 390, 320 S.E.2d 273 (1984), cert. denied, 312 N.C. 796, 325 S.E.2d 485 (1985).

Initial Purchase for Use. - Manufacturer's purchase of component parts for the purpose of assembly into drying ranges, like a dealer-distributor's purchase of a product for the purpose of resale, was not the "initial purchase for use" within the meaning of subdivision (6) of this section; plaintiff's purchase of the drying ranges for the purpose of manufacturing textiles was the "initial purchase for use" because manufacturing textiles was the ultimate or intended use of this product. Chicopee, Inc. v. Sims Metal Works, Inc., 98 N.C. App. 423, 391 S.E.2d 211, cert. denied, 327 N.C. 632, 395 S.E.2d 675 (1990).

Filing within time limit prescribed by statute of repose is a condition precedent to bringing the action, and plaintiff's failure to file within the prescribed time gives defendant a vested right not to be sued. Boudreau v. Baughman, 86 N.C. App. 165, 356 S.E.2d 907 (1987), rev'd in part, modified and aff'd in part, 322 N.C. 331, 368 S.E.2d 849 (1988).

Choice of Law. - Statutes of repose are treated as substantive provisions for choice of law purposes. Boudreau v. Baughman, 322 N.C. 331, 368 S.E.2d 849 (1988).

Where defendant, a North Carolina brake manufacturer, initially distributed his product from North Carolina into Kentucky, and plaintiff's injury as a result of a malfunction of brakes supplied by defendant took place in North Carolina, North Carolina law applied to plaintiff's breach of warranty claim. Mahoney v. Ronnie's Road Serv., 122 N.C. App. 150, 468 S.E.2d 279 (1996), aff'd per curiam, 345 N.C. 631, 481 S.E.2d 85 (1997).

Multiplicity of Claims Covered. - The generality of the language in subdivision (6) of this section indicates that the Legislature intended to cover the multiplicity of claims that can arise out of a defective product. Colony Hill Condominium I Ass'n v. Colony Co., 70 N.C. App. 390, 320 S.E.2d 273 (1984), cert. denied, 312 N.C. 796, 325 S.E.2d 485 (1985).

G.S. 1-50(a)(6) indicated that the legislature intended to cover a multiplicity of claims that could have arisen out of a defective product; a farmer's fraud action based on the alleged failure of a manufactured silo to perform as advertised or indicated by the silo's promotional literature, was thus controlled by G.S. 1-50(a)(6), not by G.S. 1-52(9), and was time-barred. Jack H. Winslow Farms, Inc. v. Dedmon, 171 N.C. App. 754, 615 S.E.2d 41 (2005), cert. denied, 360 N.C. 64, 621 S.E.2d 625 (2005).

Fraud Claim Arising from Express Representation That Plaintiff's Interests Would Be Defended Held Not Barred. - The court erroneously dismissed plaintiffs' fraud claim arising from defendant's allegedly express representation that it would defend plaintiffs' interests; the bar evidenced by subdivision (6) was inapplicable to this particular fraud claim since plaintiffs alleged that they were injured by defendant's intentionally deceptive express representation that defendant would provide counsel for them and since this representation was allegedly made irrespective of barred products liability claims. Brown v. Lumbermens Mut. Cas. Co., 90 N.C. App. 464, 369 S.E.2d 367, cert. denied, 323 N.C. 363, 373 S.E.2d 541 (1988).

Claims Arising Out of Disease. - This section, insofar as it constitutes a statute of repose, has no application to claims arising out of a disease. Silver v. Johns-Manville Corp., 789 F.2d 1078 (4th Cir. 1986).

This section did not bar plaintiff's claim for damages for asbestosis, even though the product alleged to have given rise to the injury was purchased more than six years prior to the alleged onset of the disease. Hyer v. Pittsburgh Corning Corp., 790 F.2d 30 (4th Cir. 1986).

Disease is not included within a statute of repose directed at personal injury claims unless the legislature expressly expands the statute's language to include it. Gardner v. Asbestos Corp., 634 F. Supp. 609 (W.D.N.C. 1986).

Where injury or death is alleged to have resulted from disease, the six-year statute of repose under this section is inapplicable. Guy v. E.I. DuPont De Nemours & Co., 792 F.2d 457 (4th Cir. 1986).

Asbestos-Related Claims. - Subdivision (6) does not bar action for wrongful death resulting from exposure to asbestos products brought pursuant to diversity jurisdiction. Burnette v. Nicolet, Inc., 818 F.2d 1098 (4th Cir. 1986).

Failure to Allege Viable Claim Under Chapter 99B. - Where plaintiffs sought recovery for damages to a mobile home, a product manufactured by defendant, plaintiffs' complaint did not allege a viable claim under Chapter 99B, and subdivision (6), the statute of limitations for product liability actions brought under Chapter 99B, was inapplicable. Reece v. Homette Corp., 110 N.C. App. 462, 429 S.E.2d 768 (1993).

Subdivision (6) Not Applicable to Claims Accruing Before October 1, 1979. - Since subdivision (6) of this section makes substantive changes in the law of products liability, it does not apply to claims arising before October 1, 1979. Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982).

Because subdivision (6) of this section is a substantive change in the conditions precedent to a cause of action, the legislature did not intend that subdivision (6) be retrospectively applied to causes of action that had accrued before its effective date of October 1, 1979. Bolick v. American Barmag Corp., 306 N.C. 364, 293 S.E.2d 415 (1982).

Dismissal on Ground of Former G.S. 1-15(b) Held Error. - In an action for tort and breach of warranties, trial court erred in dismissing plaintiffs' claims of negligence and strict liability instituted in 1979, for personal injuries allegedly caused by the defective condition of a vehicle purchased from defendant dealer, on the ground that the claims were barred by the three-year limitation of former G.S. 1-15(b), where plaintiffs alleged that the link between their physical injuries and gas fumes in the vehicle was not discovered until 1978, since the claim did not accrue until the injury was discovered or ought reasonably to have been discovered, and whether plaintiffs should have discovered the invasion of their legal rights prior to 1978 was a question for the jury. Gillespie v. American Motors Corp., 51 N.C. App. 535, 277 S.E.2d 100 (1981).

Statute Held Applicable. - Raw material suppliers who sold resin to companies which manufactured the components of a plumbing system were remote manufacturers, and the six-year products liability statute of repose applied in a suit alleging that the plumbing system was defective. National Property Investors v. Shell Oil Co., 950 F. Supp. 710 (E.D.N.C. 1996).

Action Held Precluded. - Where date of initial purchase of Volkswagen bus whose lack of crashworthiness plaintiff alleged caused him serious personal injuries in an accident on March 24, 1983, was on or about September 4, 1974, by its clear language, the North Carolina statute of repose, subdivision (6) of this section, precluded plaintiff's action. Davidson v. Volkswagenwerk, 78 N.C. App. 193, 336 S.E.2d 714 (1985), cert. denied, 316 N.C. 375, 342 S.E.2d 892 (1986).

An employee's products liability claim against the manufacturer of allegedly defective "flip fingers" used on a press brake was barred by this section, despite the employee's claim that the suit was brought within the time allowed by G.S. 1-52, where the flip fingers were installed more than six years before the employee's hand was injured while using the press brake. Vogl v. LVD Corp., 132 N.C. App. 797, 514 S.E.2d 113 (1999).

Cited in Robinson v. Bridgestone/Firestone N. Am. Tire, L.L.C., 209 N.C. App. 310, 703 S.E.2d 883 (2011), review denied 365 N.C. 202, 710 S.E.2d 21, 2011 N.C. LEXIS 439 (N.C. 2011).


§ 1-47. Ten years.

Within ten years an action -

  1. Upon a judgment or decree of any court of the United States, or of any state or territory thereof, from the date of its entry. No such action may be brought more than once, or have the effect to continue the lien of the original judgment.
  2. Upon a judgment rendered by a justice of the peace, from its date.
  3. Upon a sealed instrument or an instrument of conveyance of an interest in real property, against the principal thereto. Provided, however, that if action on an instrument is filed, the defendant or defendants in such action may file a counterclaim arising out of the same transaction or transactions as are the subject of plaintiff's claim, although a shorter statute of limitations would otherwise apply to defendant's counterclaim. Such counterclaim may be filed against such parties as provided in G.S. 1A-1, Rules of Civil Procedure.
  4. For the foreclosure of a mortgage, or deed in trust for creditors with a power of sale, of real property, where the mortgagor or grantor has been in possession of the property, within ten years after the forfeiture of the mortgage, or after the power of sale became absolute, or within ten years after the last payment on the same.
  5. For the redemption of a mortgage, where the mortgagee has been in possession, or for a residuary interest under a deed in trust for creditors, where the trustee or those holding under him has been in possession, within ten years after the right of action accrued.
  6. Repealed by Session Laws 1959, c. 879, s. 2.
  7. Repealed by Session Laws 2019-164, s. 1, effective July 26, 2019, and applicable to actions arising on or after that date.

History

(C.C.P., ss. 14, 31; Code, s. 152; Rev., s. 391; C.S., s. 437; 1937, c. 368; 1959, c. 879, s. 2; 1961, c. 115, s. 2; 1969, c. 810, s. 1; 1991, c. 268, s. 2; 1995 (Reg. Sess., 1996), c. 742, s. 1(a); 1997-456, s. 27; 1999-221, s. 3; 2004-203, s. 15(a); 2019-164, s. 1.)

Cross References. - As to three year limitation against registered land surveyor, see G.S. 1-52(18).

As to counterclaims and cross-claims, see G.S. 1A-1, Rule 13.

As to limitations period for unknown and certain other claims against a dissolved corporation, see G.S. 55-14-07.

Editor's Note. - Session Laws 2019-164 provides in its preamble: "Whereas, the General Assembly has provided through the enactment of G.S. 1-47(6) and G.S. 1-52(18) two limitations periods for actions brought against a registered land surveyor as defined in G.S. 89C-3(9) or a person acting under the surveyor's supervision and control for physical damage or for economic or monetary loss due to negligence or a deficiency in the performance of surveying or platting; and

"Whereas, it was the intent of the General Assembly to establish a 3-year statute of limitation under G.S. 1-52(18) and a 10-year statute of repose under G.S. 1-47(6) for such actions; and

"Whereas, the North Carolina courts have held that the limitations period under G.S. 1-47(6) is more specific and provides a longer period of time than the limitations period under G.S. 1-52(18); and, consequently, that the 10-year limitation under G.S. 1-47(6) applies to the exclusion of the 3-year limitation under G.S. 1-52(18); and

"Whereas, such ruling by the North Carolina courts have rendered the 3-year limitation under G.S. 1-52(18) a nullity, contrary to the intent of the General Assembly; and

"Whereas, the General Assembly wishes to amend the provisions of G.S. 1-47 and G.S. 1-52 to establish a 3-year statute of limitation and 7-year statute of repose for such causes of action; Now, therefore,"

Session Laws 2019-164, s. 3 is a severability clause.

Session Laws 2019-164, s. 4 made the repeal of subdivision (6) of this section by Session Laws 2019-164, s. 1, effective July 26, 2019, and applicable to actions arising on or after that date.

Effect of Amendments. - Session Laws 2019-164, s. 1, deleted subdivision (6). For effective date and applicability, see editor's note.

Legal Periodicals. - For comment on this section, see 11 N.C.L. Rev. 220 and 22 N.C.L. Rev. 146 (1944).

For comment on application of statute of limitations to promise of grantee assuming mortgage or deed of trust, see 43 N.C.L. Rev. 966 (1965).

For article "Recognition of Foreign Judgments," see 50 N.C.L. Rev. 21 (1971).

For survey of 1976 case law on civil procedure, see 55 N.C.L. Rev. 1914 (1977).

For survey of 1978 commercial law, see 57 N.C.L. Rev. 919 (1979).

For comment on the seal in North Carolina and the need for reform, see 15 Wake Forest L. Rev. 251 (1979).

For survey of North Carolina construction law, with particular reference to statutes of limitation and repose, see 21 Wake Forest L. Rev. 633 (1986).

CASE NOTES

I. IN GENERAL.

Statute of limitation may be characterized as a right not to be sued beyond the time limited. Rose v. Vulcan Materials Co., 282 N.C. 643, 194 S.E.2d 521 (1973).

A limitation is inflexible and unyielding; it ceases to operate only in the way and for the cause prescribed by the statute. Brown v. Harding, 171 N.C. 686, 89 S.E. 222 (1916).

This section has taken the place of the former statute of presumptions, Revised Code, c. 65, § 18, in respect to judgments. Brown v. Harding, 171 N.C. 686, 89 S.E. 222 (1916).

Section Not Retroactive. - This statute did not apply to actions commenced before August, 1868, or where the right of action accrued before that date. Gaither v. Sain, 91 N.C. 304 (1884).

Applicability of Section to Actions. - The legislature has prescribed ten years as the limitation to an action upon a judgment, but it has made no provision for a party to avail himself of its protection when there is no action or proceeding in the nature of an action taken against him. Berry v. Corpening, 90 N.C. 395 (1884).

Bankruptcy court denied a creditor's motion seeking reconsideration of the court's ruling that counterclaims the creditor asserted in an adversary proceeding a Chapter 11 debtor filed, which were based on an alleged mutual mistake in a deed of trust, were time-barred under G.S. 1-52(9) because the creditor could have discovered a problem with the deed more than three years before it filed an action in state court to reform the deed. The case was not governed by G.S. 1-47(2) because the deed of trust was executed by the debtor's president, not the debtor, to secure a personal debt the president incurred. Sea Horse Realty & Constr., Inc. v. CitiMortgage, Inc. (In re Sea Horse Realty & Constr., Inc.), - Bankr. - (Bankr. E.D.N.C. May 2, 2013).

Ten-year statute of limitations provided by G.S. 1-47(2) applied to a bank's claim seeking to reform a deed of trust while G.S. 1-52(9) did not because as between G.S. 1-47(2) and T.S. 1-52(9), the former was the more specific statute of limitations. Wells Fargo Bank, N.A. v. Stocks, - N.C. App. - , 831 S.E.2d 378 (2019).

Applicability of Section to Action. - Applicable statute of limitations for a property owner's third-party negligent misrepresentation claim against a land surveyor and his employer was G.S. 1-47(6), rather than G.S. 1-52(18), as it was the more specific statute. Duke Energy Carolinas, LLC v. Bruton Cable Serv., 233 N.C. App. 468, 756 S.E.2d 863 (2014).

Debtors' action seeking disallowance of creditor's claim was dismissed as to debtors' statute of limitations defense under G.S. 1-47(2) because, at the time of the debtors' bankruptcy petition, ten years had not passed since the Note at issue was accelerated and foreclosure was commenced. However, because debtors could have a viable defense to the enforceability of the claim against the property pursuant to G.S. 1-47(3), debtors were allowed to amend complaint to plead this statute of limitations. Batten v. Panatte, LLC (In re Batten), - Bankr. - (Bankr. E.D.N.C. Feb. 22, 2019).

Relationship to Duty of Care. - Imposition of a longer statute of limitations for negligence claims against surveyors, G.S. 1-47(6), does not create or expand their duty of care. Lamb v. Styles, 263 N.C. App. 633, 824 S.E.2d 170 (2019).

Proceeding for leave to issue execution on judgment charging lands with owelty in partition is an "action" within the meaning of the statute of limitations. Ex parte Smith, 134 N.C. 495, 47 S.E. 16 (1904).

Plea of Statute Held Sufficient. - An answer alleging that the plaintiff had not brought his action within the time prescribed by law, and that the same was barred by the statute of limitations, was a sufficient plea of the statute of limitations. Pemberton v. Simmons, 100 N.C. 316, 6 S.E. 122 (1888).

Equitable estoppel applied to bar a shareholder from denying the validity of certain corporate debts because the shareholder had asserted that the debts were valid in various ways, and the directors lacked knowledge of the facts at issue. Crisp v. E. Mortg. Inv. Co., 179 N.C. App. 213, 632 S.E.2d 814 (2006).

Duty to Consider Unsatisfactory Plea. - Although the plea of this section was indefinite and unsatisfactory, it was the duty of the court below to have considered and determined it, and a failure to do so was error. Proctor v. Proctor, 105 N.C. 222, 10 S.E. 1036 (1890).

Burden of Proof. - Upon defendant's plea of the statute of limitations, the burden devolved upon plaintiffs to show that their action was not barred, but was instituted within the time permitted by statute. Bennett v. Anson Bank & Trust Co., 265 N.C. 148, 143 S.E.2d 312 (1965).

Where a plaintiff brought an action to prevent the 10-year statute of limitations from barring his recovery on a prior judgment, the action was in the nature of an independent action on the judgment, the only procedure in this state by which a judgment can be renewed. As it was a separate and distinct action, the plaintiff could request, in his complaint, interest at the legal rate of 8%, and the trial court could award interest at that rate from the date the present action was instituted until the judgment is satisfied. Speros Constr. Co. v. Musselwhite, 103 N.C. App. 510, 405 S.E.2d 785 (1991).

Effect of Voluntary Partial Payment. - A partial payment voluntarily made does not remove the statutory bar. McDonald v. Dickson, 87 N.C. 404 (1882).

Plea of Statute Held Available to Distributee. - In an action by plaintiff to recover his distributive share of an estate, where defendant administrator set up and pleaded debts of plaintiff's due intestate as an offset, the claims of both plaintiff and defendant being legal, the doctrine of equitable setoff had no application and the plea of the statute of limitations was available to plaintiff as a valid defense to the affirmative claim of offset pleaded by defendant. Perry v. First-Citizens Bank & Trust Co., 223 N.C. 642, 27 S.E.2d 636 (1943).

Common Law Accrual Rule Applies to Reformation Actions. - Although G.S. 1-52(9) contains language modifying the common law accrual rule, G.S. 1-47(2) does not; thus, the common law rule applies to reformation actions governed by G.S. 1-47(2). Wells Fargo Bank, N.A. v. Stocks, - N.C. App. - , 831 S.E.2d 378 (2019).

As to law prior to enactment of this section, see Hamlin v. Mebane, 54 N.C. 18 (1853); Hodges v. Council, 86 N.C. 181 (1882); Headen v. Womack, 88 N.C. 468 (1883); Rogers v. Clements, 98 N.C. 180, 3 S.E. 512 (1887); Ex parte Walker, 107 N.C. 340, 12 S.E. 136 (1890).

Applied in Woody v. Jones, 113 N.C. 253, 18 S.E. 205 (1893); Geitner v. Jones, 176 N.C. 542, 97 S.E. 494 (1918); Serls v. Gibbs, 205 N.C. 246, 171 S.E. 56 (1933); Town of Farmville v. Paylor, 208 N.C. 106, 179 S.E. 459 (1935); Davis v. Cockman, 211 N.C. 630, 191 S.E. 322 (1937); Allsbrook v. Walston, 212 N.C. 225, 193 S.E. 151 (1937); Bell v. Chadwick, 226 N.C. 598, 39 S.E.2d 743 (1946); Layden v. Layden, 228 N.C. 5, 44 S.E.2d 340 (1947); Hughes v. Oliver, 228 N.C. 680, 47 S.E.2d 6 (1948); North Carolina Joint Stock Land Bank v. Bland, 231 N.C. 26, 56 S.E.2d 30 (1949); McCollum v. Smith, 233 N.C. 10, 62 S.E.2d 483 (1950); Hanson v. Yandle, 235 N.C. 532, 70 S.E.2d 565 (1952); Barbee v. Edwards, 238 N.C. 215, 77 S.E.2d 646 (1953); Jordan v. Chappel, 246 N.C. 620, 99 S.E.2d 778 (1957); Larsen v. Sedberry, 54 N.C. App. 166, 282 S.E.2d 551 (1981); Square D. Co. v. C.J. Kern Contractors, 70 N.C. App. 30, 318 S.E.2d 527 (1984); Stephens v. Hamrick, 86 N.C. App. 556, 358 S.E.2d 547 (1987); Griffin v. Griffin, 96 N.C. App. 324, 385 S.E.2d 526 (1989).

Cited in Broyles v. Young, 81 N.C. 315 (1879); Hall v. Gibbs, 87 N.C. 4 (1882); Usry v. Suit, 91 N.C. 406 (1884); Wilcoxon v. Logan, 91 N.C. 449 (1884); Sikes v. Parker, 95 N.C. 232 (1886); Rogers v. Clements, 98 N.C. 180, 3 S.E. 512 (1887); Williams v. McNair, 98 N.C. 332, 4 S.E. 131 (1887); Houck v. Adams, 98 N.C. 519, 4 S.E. 502 (1887); Frederick v. Williams, 103 N.C. 189, 9 S.E. 298 (1889); Brittain v. Dickson, 104 N.C. 547, 10 S.E. 701 (1889); Owen v. Paxton, 122 N.C. 770, 30 S.E. 343 (1898); Ferrell v. Hinton, 161 N.C. 348, 77 S.E. 224 (1913); Hyman v. Jones, 205 N.C. 266, 171 S.E. 103 (1933); In re Gibbs, 205 N.C. 312, 171 S.E. 55 (1933); Furr v. Trull, 205 N.C. 417, 171 S.E. 641 (1933); Merrimon v. Postal Telegraph-Cable Co., 207 N.C. 101, 176 S.E. 246 (1934); Davis v. Alexander, 207 N.C. 417, 177 S.E. 417 (1934); Ritter v. Chandler, 214 N.C. 703, 200 S.E. 398 (1939); Ownbey v. Parkway Properties, Inc., 221 N.C. 27, 18 S.E.2d 710 (1942); City of Raleigh v. Mechanics & Farmers Bank, 223 N.C. 286, 26 S.E.2d 573 (1943); Lee v. Rhodes, 231 N.C. 602, 58 S.E.2d 363 (1950); First-Citizens Bank & Trust Co. v. Parker, 235 N.C. 326, 69 S.E.2d 841 (1952); Reid v. Bristol, 241 N.C. 699, 86 S.E.2d 417 (1955); State v. Bryant, 251 N.C. 423, 111 S.E.2d 591 (1959); Scott Poultry Co. v. Graves, 272 N.C. 22, 157 S.E.2d 608 (1967); Walker Mfg. Co. v. Dickerson, Inc., 560 F.2d 1184 (4th Cir. 1977); North Carolina State Ports Auth. v. Lloyd A. Fry Roofing Co., 32 N.C. App. 400, 232 S.E.2d 846 (1977); North Carolina State Ports Auth. v. Lloyd A. Fry Roofing Co., 294 N.C. 73, 240 S.E.2d 345 (1978); Mobil Oil Corp. v. Wolfe, 297 N.C. 36, 252 S.E.2d 809 (1979); Bank of N.C. v. Cranfill, 297 N.C. 43, 253 S.E.2d 1 (1979); Walker Mfg. Co. v. Dickerson, Inc., 619 F.2d 305 (4th Cir. 1980); Bruce v. North Carolina Nat'l Bank, 62 N.C. App. 412, 303 S.E.2d 561 (1983); Blue Cross & Blue Shield v. Odell Assocs., 61 N.C. App. 350, 301 S.E.2d 459 (1983); Kennon v. Kennon, 72 N.C. App. 161, 323 S.E.2d 741 (1984); HFC v. Ellis, 107 N.C. App. 262, 419 S.E.2d 592; Fitch v. Fitch, 115 N.C. App. 722, 446 S.E.2d 138 (1994); United States v. Pierce, 214 Bankr. 550 (Bankr. E.D.N.C. 1997); State ex rel. George v. Bray, 130 N.C. App. 552, 503 S.E.2d 686 (1998); Bogovich v. Embassy Club of Sedgefield, Inc., 211 N.C. App. 1, 712 S.E.2d 257 (2011); Magazian v. Creagh, 234 N.C. App. 511, 759 S.E.2d 130 (2014); Wells Fargo Bank, N.A. v. Coleman, 239 N.C. App. 239, 768 S.E.2d 604 (2015); Malinak v. Malinak, 242 N.C. App. 609, 775 S.E.2d 915 (2015).

II. JUDGMENTS AND DECREES.

Statute to Be Strictly Construed. - A statute so entirely in derogation of common right as is the statute of limitations should be strictly construed, and under it a judgment should not be treated as a contract. McDonald v. Dickson, 87 N.C. 404 (1882).

Statute as the statute of limitations should be strictly construed and is a complete bar to a motion for leave to issue execution of a judgment, when such motion is made more than 10 years after the rendition of such judgment. Powles v. Kandrasiewicz, 886 F. Supp. 1261 (W.D.N.C. 1995).

There is no analogy which makes decisions under former precedents applicable to present law in effect since the Code of Civil Procedure in 1868, inasmuch as such decisions relate entirely to rules of evidence, and not to the removal of a statutory bar where the action is upon a bond or judgment. McDonald v. Dickson, 87 N.C. 404 (1882).

As to prior law, see Ex parte Walker, 107 N.C. 340, 12 S.E. 136 (1890).

Section Not Retroactive. - A decree in proceedings for partition had in 1861, adjudging owelty of partition against certain shares of the land divided, was subject to the statute of presumptions, because this section is not retroactive. Herman v. Watts, 107 N.C. 646, 12 S.E. 437 (1890).

A judgment rendered before, though docketed after, the adoption of the Code of Civil Procedure was subject only to a presumption of satisfaction, and not to the statute of limitations as prescribed in the Code. Johnston v. Jones, 87 N.C. 393 (1882).

The words "any state" must be taken to mean the judgment of a court of any state, including North Carolina. But even if they are not construed to include this State, it would make no material difference, since under G.S. 1-56 every action for relief not specially provided for must be commenced within the same period of ten years after the cause of action shall have accrued. McDonald v. Dickson, 85 N.C. 248 (1881), aff'd on rehearing, 87 N.C. 404 (1882).

It makes no difference whether subdivision (1) of this section or G.S. 1-56 applies. The result will be the same in either case. Ex parte Smith, 134 N.C. 495, 47 S.E. 16 (1904). See also, McDonald v. Dickson, 85 N.C. 248 (1881), aff'd on rehearing, 87 N.C. 404 (1882).

A child support order is a judgment directing payment of a sum of money and falls within the 10-year statute of limitations of this section. Adkins v. Adkins, 82 N.C. App. 289, 346 S.E.2d 220 (1986); State ex rel. Pruitt v. Pruitt, 94 N.C. App. 713, 380 S.E.2d 809 (1989).

This section applies to foreign judgments. Arrington v. Arrington, 127 N.C. 190, 37 S.E. 212 (1900).

This section is applicable to foreign judgments because North Carolina applies the lex fori in an action in this State on a judgment obtained in another state; accordingly, even though judgment had an effective life of 20 years under Alabama law, the 10-year statute of limitations imposed by North Carolina law barred plaintiff from enforcing such judgment in this State. Powles v. Kandrasiewicz, 886 F. Supp. 1261 (W.D.N.C. 1995).

The Constitution of the United States permits courts of this state to bar enforcement of foreign judgments upon expiration of the ten year period specified in this section under circumstances where a lengthier limitation period for enforcement of judgments has been effected by the foreign jurisdiction rendering the judgment. Wener v. Perrone & Cramer Realty, Inc., 137 N.C. App. 362, 528 S.E.2d 65 (2000).

Foreign Judgment Properly Enforced. - Trial court properly granted motion to enforce Texas judgment as a North Carolina judgment where the Texas judgment was well within the time limitation for enforcement of foreign judgments and the Texas judgment merely apportioned damages between parties and was not a separate action for contribution. In re Aerial Devices, Inc., 126 N.C. App. 709, 486 S.E.2d 463 (1997).

In an action to recover a periodic alimony award entered by a California court, G.S. 1-47 barred recovery only of those sums accruing within 10 years of the filing of the former wife's action against the ex-husband's estate. Elliott v. Estate of Elliott, 163 N.C. App. 577, 596 S.E.2d 819, cert. denied, 358 N.C. 731, 601 S.E.2d 530 (2004).

Section Not Applicable to Award by Industrial Commission. - Conceding an award of compensation by the Industrial Commission has certain characteristics of a judgment, such award is not a judgment of a court within the meaning of subdivision (1) of this section. Bryant v. Poole, 261 N.C. 553, 135 S.E.2d 629 (1964).

United States Not Barred from Enforcing Judgment on Unpaid Criminal Fine. - No limitation period, state or federal, bars the United States from enforcing a judgment on an unpaid criminal fine. United States v. Welborn, 495 F. Supp. 833 (M.D.N.C. 1980).

Effect of Section on Judgments. - This section fixes the current period of ten years as that which terminates the lien of a judgment, and operates as a bar to a new action upon it. McDonald v. Dickson, 85 N.C. 248 (1881), aff'd on rehearing, 87 N.C. 404 (1882).

Statute of limitations is a complete bar to a motion for leave to issue execution on a judgment, when such motion is made more than ten years after the rendition of such judgment. McDonald v. Dickson, 85 N.C. 248 (1881), aff'd on rehearing, 87 N.C. 404 (1882).

The issuing of an execution on a decree charging owelty in partition is barred within 10 years. Ex parte Smith, 134 N.C. 495, 47 S.E. 16 (1904).

Effect of Judgment upon Cause of Action on Contract or Tort. - A cause of action on contract or tort loses its identity when merged in a judgment, and thereafter a new cause of action arises out of the judgment. McDonald v. Dickson, 87 N.C. 404 (1882).

Specialties, when reduced to judgments, are merged, and the statute barring judgments will then apply. Brittain v. Dickson, 104 N.C. 547, 10 S.E. 701 (1889).

A cause of action on a judgment accrues from the date of its rendition. Rodman v. Stillman, 220 N.C. 361, 17 S.E.2d 336 (1941).

Partial payment on a judgment does not arrest the running of the statute of limitations. Hughes v. Boone, 114 N.C. 54, 19 S.E. 63 (1894); McCaskill v. McKinnon, 121 N.C. 192, 28 S.E. 265 (1897).

Running of Statute - On Judgment for Devastavit Against Executor. - When an action is brought against an executor or administrator for a devastavit, and a judgment is obtained against him, the cause of action accrues at the time of the qualification, and the law in force at the time governs, but when an action is brought after the death of the executor, the cause of action accrues as against his real and personal representative when such representative qualifies and gives notice to creditors. Syme v. Badger, 96 N.C. 197, 2 S.E. 61 (1887), overruled on other grounds, Lee v. McKoy, 118 N.C. 518, 24 S.E. 210 (1896).

Running of Statute - On Judgment in Favor of Infant. - The statute limiting the time to bring an action on a judgment to 10 years from the date of its rendition does not begin to run as against an infant where the judgment was procured on his behalf by a next friend appointed for that purpose. G.S. 1-17 permits the bringing of an action on such judgment within the time limited by subdivision (1) of this section, i.e., 10 years, after he became 21 (now 18) years old. Teele v. Kerr, 261 N.C. 148, 134 S.E.2d 126 (1964).

Running of Statute - On Alimony and Child Support Payable Periodically. - Periodic sums of alimony and child support which became due more than 10 years before the institution of a motion in a cause for a judicial determination of the amount due are barred by the 10-year limitation of this section. Lindsey v. Lindsey, 34 N.C. App. 201, 237 S.E.2d 561 (1977).

In an action on a judgment for alimony, payable annually, the annual sums are barred within 10 years from the time they become due, under this section. Arrington v. Arrington, 127 N.C. 190, 37 S.E. 212 (1900).

The statute of limitations begins to run against each support payment as it becomes overdue, not from the date the decree ordering support was entered; accordingly, there is no bar to recovery of unpaid child support payments which came due during the ten years immediately prior to the filing of a claim for past due support. State ex rel. Pruitt v. Pruitt, 94 N.C. App. 713, 380 S.E.2d 809 (1989).

Application of Child Support Arrearages. - Trial judge properly applied father's child support payments to earlier arrearages first and then to later arrearages; therefore, the arrearages supporting mother's child support claim were within the ten year statute of limitations and were not time-barred under this section. Belcher v. Averette, 136 N.C. App. 803, 526 S.E.2d 663 (2000).

Subsequent Adoption of Children Without Affect on Statute of Limitations for Support Payments. - In the absence of evidence that mother waived her right to past due payments, nothing about childrens' subsequent adoption affected father's pre-adoption obligation to provide support for his children, and nothing about the subsequent adoption affected the applicable statute of limitations. State ex rel. Pruitt v. Pruitt, 94 N.C. App. 713, 380 S.E.2d 809 (1989).

Arrearages Reduced to Judgment. - Once the amount of arrearages is reduced to judgment, however, as occurred when the out of state court entered its order, that judgment is entitled to full enforcement in North Carolina for a period of ten years after its entry. Silvering v. Vito, 107 N.C. App. 270, 419 S.E.2d 360 (1992).

Where an action was instituted to recover amount due on a note and foreclose mortgage securing the same, and judgment was rendered on the debt, an order being made for the sale of the land, which sale was later reported and confirmed, the statute of limitations began to run at the date of the money judgment and not from the date of the confirmation of the sale. McCaskill v. McKinnon, 121 N.C. 192, 28 S.E. 265 (1897).

Action to enforce judgment lien by condemning land of the judgment debtor to be sold was not an action upon a judgment within the purview of subdivision (1) of this section, but even if the statute were applicable it would not have the effect of continuing the lien of the judgment beyond the 10-year period prescribed by G.S. 1-234. Lupton v. Edmundson, 220 N.C. 188, 16 S.E.2d 840 (1941).

Renewal of Judgment. - In a creditor's action to renew a judgment, the creditor was entitled to judgment as a matter of law because the underlying default judgment was not void, as a clerk was authorized to enter the default judgment, since the creditor's affidavit and verified complaint included specific allegations enabling the clerk to identify the amount owed under the default judgment with certainty. Unifund CCR Partners v. Loggins, - N.C. App. - , 841 S.E.2d 835 (2020).

New Action Starts Limitations Period Anew. - Creditor's 2006 motion under the Uniform Enforcement of Foreign Judgments Act (UEFJA) to register a 2005 Florida judgment against the debtors in North Carolina was timely filed within the 10-year period under G.S. 1-47 because the creditor timely filed a new action in Florida in 2005 in accordance with the 20-year period under Fla. Stat. § 95.11(1) to start the limitation period anew, the creditor's 1990 judgment was extinguished by the 2005 judgment, and the UEFJA action was based on the 2005 judgment and not the 1990 judgment. Palm Coast Recovery Corp. v. Moore, 184 N.C. App. 550, 646 S.E.2d 438 (2007).

Judgment Held Barred. - Where judgment was taken in 1926, and in 1931 defendant moved before the clerk to set the judgment aside, which motion was denied, upon which appeal was taken to the judge, and the clerk ordered that execution should not issue until the adjournment of the August, 1931, term of court, and the appeal to the judge was never heard, the order of the clerk and the appeal to the judge did not have the effect of stopping the statute, and the judgment was barred in 1939 by the 10-year statute of limitations. Exum v. Carolina R.R., 222 N.C. 222, 22 S.E.2d 424 (1942).

The statute of limitations may be set up as a defense by an administrator to a motion for leave to issue execution after 10 years from the date of docketing a judgment against his intestate, even though executions have regularly been issued within each successive period of three years after the judgment was docketed. Berry v. Corpening, 90 N.C. 395 (1884).

Trial court did not err in dismissing a judgment assignee's complaint to enforce a judgment entered against individuals pursuant to G.S. 1-47 because the assignee failed to assert his claim within the ten-year statute of limitations, G.S. 1-47(1), which required him to file his complaint within ten years of the judgment; the ten-year period referred to in G.S. 1-234 governs judgment liens on real property, and nothing in the plain language of G.S. 1-234 indicates that the limitations on the duration of a judgment lien should apply to the statutory period set forth in G.S. 1-47(1). Fisher v. Anderson, 193 N.C. App. 438, 667 S.E.2d 292 (2008).

Trial court did not err in dismissing a judgment assignee's complaint to enforce a judgment pursuant to G.S. 1-47 because the assignee failed to assert his claim within the ten-year statute of limitations, G.S. 1-47(1), and the ten-year limitations period on the duration of a judgment lien, G.S. 1-234, did not apply to the statutory period set forth in G.S. 1-47(1); even assuming arguendo, that the legislature intended the limitation for the duration of a judgment lien outlined in G.S. 1-234 to apply to the ten-year statute of limitations in G.S. 1-47, the assignee failed to demonstrate G.S. 1-234 applied to the facts because he did not allege that enforcement of the judgment was restrained by an injunction, order, appeal, or statutory prohibition. Fisher v. Anderson, 193 N.C. App. 438, 667 S.E.2d 292 (2008).

Trial court did not err in dismissing a judgment assignee's complaint to enforce a judgment entered because the assignee failed to assert his claim within the ten-year statute of limitations, G.S. 1-47(1), and nothing in the plain language of G.S. 1A-1, N.C. R. Civ. P. 62(a), indicated that the legislature intended the automatic stay from execution to add thirty days to the ten-year statute of limitations on commencing an action to enforce a judgment; because the issuance of an execution does not prolong the life of a judgment lien, the thirty-day stay on the issuance of an execution or proceedings to enforce the judgment will also not operate to toll the statute of limitations for commencement of an action to enforce a judgment. Fisher v. Anderson, 193 N.C. App. 438, 667 S.E.2d 292 (2008).

Land is not relieved under this section of a judgment lien by the mere transfer of the debtor's title. Osborne v. Board of Educ., 207 N.C. 503, 177 S.E. 642 (1935).

III. JUDGMENTS RENDERED BY JUSTICES.

.

Limitation Is Now 10 Years. - The period now prescribed for the commencement of an action on a judgment rendered in a justice's court is 10 years from its date. Bryant v. Poole, 261 N.C. 553, 135 S.E.2d 629 (1964).

IV. SEALED INSTRUMENTS.

.

A. IN GENERAL.

.

Statute of Limitations Applies Equally to All Provisions And Conditions. - General Assembly intended that the ten-year statute of limitations applicable to sealed instruments applies equally to all provisions and conditions of the overall contract, regardless of whether the signatures affixed to those additional provisions and conditions make any reference to the use of a seal. Davis v. Woodlake Partners, LLC, 230 N.C. App. 88, 748 S.E.2d 762 (2013).

Subdivision (2) Applies Only to Principals. - By its express terms, subdivision (2) of this section is applicable only to principals. Pickett v. Rigsbee, 252 N.C. 200, 113 S.E.2d 323 (1960).

In an action based on a house's encroachment upon an easement, the claim was not governed by the 10 year statute of limitation found in this section because a buyer was not a principal to the 1951 contract for the easement. Duke Energy Carolinas, LLC v. Gray, 237 N.C. App. 420, 766 S.E.2d 354 (2014).

Notwithstanding Seal. - Affixing a seal to an instrument does not make this section applicable. Pickett v. Rigsbee, 252 N.C. 200, 113 S.E.2d 323 (1960).

And Does Not Apply to Actions Against Sureties. - Subdivision (2) of this section is not applicable to actions against sureties. The use of the word "principal" and the omission of the word "sureties" clearly indicates this to be the intention of the legislature. Subdivision (1) of G.S. 1-52 is applicable to sureties, and action against them is limited to three years. Welfare v. Thompson, 83 N.C. 276 (1880); Redmond v. Pippen, 113 N.C. 90, 18 S.E. 50 (1893); Barnes v. Crawford, 201 N.C. 434, 160 S.E. 464 (1931); North Carolina Bank & Trust Co. v. Williams, 208 N.C. 243, 180 S.E. 81 (1935); North Carolina Bank & Trust Co. v. Williams, 209 N.C. 806, 185 S.E. 18 (1936).

The statute of limitations barring actions against defendants as sureties is G.S. 1-52, and not subdivision (2) of this section, notwithstanding the seal appearing after their names. Fleet Real Estate Funding Corp. v. Blackwelder, 83 N.C. App. 27, 348 S.E.2d 611 (1986), cert. denied, 319 N.C. 104, 353 S.E.2d 109 (1987).

Suit by Surety on Note Under Seal. - G.S. 26-3.1 allows a surety to sue a principal on the original instrument or for reimbursement on the surety agreement. After three years, a suit on the latter theory would be barred by G.S. 1-52. Where a surety elects to sue on the underlying note under seal, he has the same rights the bank had on the original note. Thus, this section, the 10-year statute of limitations, applies. Adams v. Bass, 88 N.C. App. 599, 364 S.E.2d 194 (1988).

Action against endorser on a note under seal is ordinarily barred after three years from maturity of the note, by subdivision (1) of G.S. 1-52, even though the endorsement is itself also under seal, an endorser not being a principal to the note so as to come within the provisions of this section. Howard v. White, 215 N.C. 130, 1 S.E.2d 356 (1939).

Purchase Money Security Agreements Under Seal Governed by Subdivision (2). - The 10-year limitation of subdivision (2) of this section, and not the four-year limitation of G.S. 25-2-725, is applicable to purchase money security agreements executed under seal. North Carolina Nat'l Bank v. Holshouser, 38 N.C. App. 165, 247 S.E.2d 645 (1978).

In an action to recover a deficiency remaining after repossession and sale of collateral security, where defendant has purchased a motor vehicle on credit, executing a purchase money security agreement giving the seller a purchase money security interest in the vehicle and retaining title in the seller or its assignees until the purchase price was fully paid, and immediately thereafter defaulted, the 10-year limitation of subdivision (2) of this section was applicable, rather than the four-year limitation of G.S. 24-2-725. North Carolina Nat'l Bank v. Holshouser, 38 N.C. App. 165, 247 S.E.2d 645 (1978).

Effect of Assignment of Sealed Contract. - Where assignor had a right not to be sued after 10 years from the accrual of a cause of action under sealed contract, by assigning this contract, assignor could not confer upon defendant assignee a greater immunity to suit than assignor itself possessed. Hence, when defendant assignee impliedly assumed its assignor's contractural obligations under the general assignment of a contract under seal, it exposed itself for 10 years to suit on the sealed contract. Rose v. Vulcan Materials Co., 282 N.C. 643, 194 S.E.2d 521 (1973).

Section Operates upon Remedy. - This section limits the time within which actions may be brought, and thus operates upon the remedy and not the right. The bar of the statute on a sealed promissory note is of that character, and while it takes away the forum for the enforcement of the note, it does not destroy the debt. Demai v. Tart, 221 N.C. 106, 19 S.E.2d 130 (1942).

What Plaintiff Must Show. - The burden is upon plaintiff to prove that the action accrued within the time limited by this section, by showing that the corporate defendant adopted the seal appearing on the contract for the special occasion or for all similar occasions, or that such seal became the seal of the corporation by reason of some other rule of law, or that the regular corporate seal was impressed or attached to the original of the contract, or that there were facts and circumstances which excluded the operation of the three-year statute, G.S. 1-52, other than the matter of a seal. Security Nat'l Bank v. Educators Mut. Life Ins. Co., 265 N.C. 86, 143 S.E.2d 270 (1965).

When Statute Begins to Run - Breach of Warranty. - In an action for breach of a covenant of warranty, the statute of limitation begins to run when there is an ouster of the grantee. Shankle v. Ingram, 133 N.C. 254, 45 S.E. 578 (1903).

When Statute Begins to Run - Breach of Covenant of Seizin. - In an action for damages for breach of covenant of seizin, the statute of limitations begins to run upon delivery of the deed. Shankle v. Ingram, 133 N.C. 254, 45 S.E. 578 (1903).

When Statute Begins to Run - Coupons of Bonds. - The statute of limitations begins to run against coupons of bonds at the maturity, not of the bonds, but of the coupons. Threadgill v. Commissioners of Anson County, 116 N.C. 616, 21 S.E. 425 (1895).

Where bond coupons, negotiable in form and payable to the bearer, had been detached from the bonds and the bonds had been sold, the statute of limitations began to run against each of them from their respective dates of maturity, and in such instance a contention that the coupons were incident to the principal obligation of the bond and were valid during the life of the bond was untenable. Jennings v. Morehead City, 226 N.C. 606, 39 S.E.2d 610 (1946), distinguishing Knight v. Braswell, 70 N.C. 709 (1874).

When Statute Begins to Run - Guaranty Under Seal. - An action upon a guaranty under seal is not barred until 10 years after the cause of action accrues. Coleman v. Fuller, 105 N.C. 328, 11 S.E. 175 (1980).

Effect of Partial Payment on Running of Statute. - The limitations period on an action on a promissory note will begin anew when a partial payment, nothing else appearing, is made by the debtor before the limitations period has expired. Wells v. Barefoot, 55 N.C. App. 562, 286 S.E.2d 625 (1982).

Where action was instituted on note under seal on 10 February, 1943, and the last payment had been made upon the note on 1 October, 1933, the action was not barred by this section, as the statute commenced again to run from the day when the last payment was made. Sayer v. Henderson, 225 N.C. 642, 35 S.E.2d 875 (1945), citing Green v. Greensboro Female College, 83 N.C. 449, 35 Am. St. R. 579 (1880).

Setoff Does Not Repel Statute. - A setoff in favor of the obligor is not a part payment as to an endorser and does not repel the statute. Woodhouse v. Simmons, 73 N.C. 30 (1875).

Determination of whether an instrument is a sealed instrument, commonly referred to as a specialty, is question for the court. Square D Co. v. C.J. Kern Contractors, 314 N.C. 423, 334 S.E.2d 63 (1985).

When Contract Under Seal Is a Matter of Law. - If it appears without ambiguity, on the face of the contract, that a party signed under seal, it is held as a matter of law that the contract is under seal. Central Sys. v. General Heating & Air Conditioning Co., 48 N.C. App. 198, 268 S.E.2d 822, cert. denied, 301 N.C. 400, 273 S.E.2d 445 (1980).

When Question of Seal Is for the Jury. - If a contract is ambiguous as to whether a party adopted a seal, it is a jury question as to whether the party signed under seal. Central Sys. v. General Heating & Air Conditioning Co., 48 N.C. App. 198, 268 S.E.2d 822, cert. denied, 301 N.C. 400, 273 S.E.2d 445 (1980).

Presence of the word "seal" was sufficient to qualify contract for the sale of land as a sealed instrument for which the ten-year statute of limitations would apply. Cameron v. Martin Marietta Corp., 729 F. Supp. 1529 (E.D.N.C. 1990).

Evidence of the word "seal" in brackets is sufficient to overcome the three-year statute of limitations; thereby qualifying the contract as a sealed instrument. Biggers v. Evangelist, 71 N.C. App. 35, 321 S.E.2d 524 (1984), cert. denied, 313 N.C. 327, 329 S.E.2d 384 (1985).

Ordinarily, proof that the obligation creating the indebtedness is a written instrument under seal repeals the three-year statute of limitations, and the rights of the parties would then be governed by the 10-year period of limitations under this section. Murphrey v. Winslow, 70 N.C. App. 10, 318 S.E.2d 849, rev'd on other grounds, 313 N.C. 320, 327 S.E.2d 878 (1984).

The inclusion of a seal in a lease agreement neither creates a duty between the parties nor shifts a pre-existing duty from one party to the other. It merely extends, by operation of law, the period of time in which the parties expose themselves to suit on the particular sealed instrument from three years to 10 years. Murphrey v. Winslow, 70 N.C. App. 10, 318 S.E.2d 849, rev'd on other grounds, 313 N.C. 320, 327 S.E.2d 878 (1984).

Instrument Held Under Seal as Matter of Law. - Defendant executed a contract under seal as a matter of law, and the 10-year statute of limitations applied to an action on the contract, where the contract stated that the parties "have executed this agreement under seal," and the word "seal" appeared under the names of the attesting witnesses who were not parties to the contract and close to the place where defendant executed the contract. Central Sys. v. General Heating & Air Conditioning Co., 48 N.C. App. 198, 268 S.E.2d 822, cert. denied, 301 N.C. 400, 273 S.E.2d 445 (1980).

While ordinarily the bar of the statute of limitations is a mixed question of law and fact, where, in an action on a note, the plea of the statute was based upon defendant's contention that the note was not under seal, but defendant offered no evidence in support of his contention that he did not adopt the printed word "seal" appearing on the note after his name as maker, the question of the statute became a matter of law, and the court properly refused to submit an issue as to whether the action was barred. Currin v. Currin, 219 N.C. 815, 15 S.E.2d 279 (1941).

Intent of Parties as to Seal Held Question of Fact. - In an action to recover the balance due on a promissory note, where a corporate seal appeared but there was no seal after defendants' names, a material issue of fact was raised as to the intent of the parties to enter into a sealed instrument, and the statute of limitations of subdivision (2) of this section would not necessarily be applicable. First Citizens Bank & Trust Co. v. Martin, 44 N.C. App. 261, 261 S.E.2d 145 (1979), cert. denied, 299 N.C. 741, 267 S.E.2d 661 (1980).

Section Held Controlling. - Where note contained the word "seal" opposite the signature it was conclusive as to the nature of the instrument, and this section controlled as to the time within which an action might be brought. Federal Reserve Bank v. Kalin, 81 F.2d 1003 (4th Cir. 1936).

Where plaintiff offered in evidence a note, apparently executed by defendant and another as joint obligors, with the word "seal" in brackets opposite the name of each, nothing else appearing, this would repel the three-year statute of limitations, as sealed instruments against principals are not barred until lapse of 10 years. Lee v. Chamblee, 223 N.C. 146, 25 S.E.2d 433 (1943).

Where the contract sued upon was an original agreement executed on an independent consideration and the defendant promisor was a principal, the 10-year statute of limitations was controlling. New Amsterdam Cas. Co. v. Waller, 233 N.C. 536, 64 S.E.2d 826 (1951).

Where contract for the management and division of profits of a business was held to be an instrument as that term is used in subdivision (2) of this section, and there was no ambiguity in the wording of the contract as to the intent of the parties that it be under their respective seals, plaintiff's right to bring his action was governed by the provisions of this section, not G.S. 1-52. Hutchinson v. Hutchinson, 49 N.C. App. 687, 272 S.E.2d 146 (1980).

Trial court correctly declined to enter summary judgment for a seller on statute of limitations grounds because the contractual documents the parties executed constituted a single agreement executed under seal subject to the ten-year statute of limitations; given the presence of a seal on the purchase contract, the entire agreement constituted an instrument executed under seal, rendering the action subject to the ten-year statute of limitations. Davis v. Woodlake Partners, LLC, 230 N.C. App. 88, 748 S.E.2d 762 (2013).

Ten-year statute of limitations, rather than a three-year statute of limitations, was applicable to a spouse's breach of contract claim against the other spouse regarding a separation agreement because the separation agreement was executed under seal. Crogan v. Crogan, 236 N.C. App. 272, 763 S.E.2d 163 (2014).

Mortgagee's claim to reform a deed of trust was not time-barred because a more specific ten-year limitations period applied, rather than a three-year period, as the deed of trust was a sealed instrument conveying real property. Nationstar Mortg., LLC v. Dean, 261 N.C. App. 375, 820 S.E.2d 854 (2018).

Section Held Inapplicable. - Ten-year limitations period under G.S. 1-47(2) did not apply to a creditor's claims against a bankruptcy debtor that a promissory note and deed of trust erroneously indicated that the debtor's principal rather than the debtor was the owner of the real property securing the note, since the ten-year limitations period only applied to the party executing the real property instrument which was the principal rather than the debtor. Sea Horse Realty & Constr., Inc. v. CitiMortgage, Inc. (In re Sea Horse Realty & Constr., Inc.), - Bankr. - (Bankr. E.D.N.C. Feb. 1, 2013), aff'd, 2013 U.S. Dist. LEXIS 146005 (E.D.N.C. 2013).

A bond for the payment of money executed prior to this section by the principal and his sureties was exempted from the operation of the statute of limitations as contained in this section. Knight v. Braswell, 70 N.C. 709 (1874).

"Declaration of Covenants and Restrictions" for condominium project, which contained several restrictive covenants including defendant's covenant to pay annual, per-unit maintenance assessments, while technically not a deed, did affect an interest in land and, by its very nature, evidenced an intention that it constitute an instrument under seal subject to 10-year statute of limitations. Dunes South Homeowners Ass'n v. First Flight Bldrs., Inc., 341 N.C. 125, 459 S.E.2d 477 (1995).

Corporate Seal. - The fact that a corporate seal was impressed on a contract, without more, is not sufficient to convert the contract into a sealed instrument, i.e., specialty. Square D Co. v. C.J. Kern Contractors, 314 N.C. 423, 334 S.E.2d 63 (1985).

The question to be answered in order to determine whether a corporate seal transforms a party's contract into a sealed instrument, i.e., a specialty, is whether the body of the contract contains any language that indicates that the parties intended that the instrument be a specialty or whether extrinsic evidence would demonstrate such an intention. Square D Co. v. C.J. Kern Contractors, 314 N.C. 423, 334 S.E.2d 63 (1985).

Absent any evidence that would tend to indicate that the parties intended that construction contract to which corporate seal of contractor had been affixed was to be a sealed instrument, the contract was not a specialty and the 10-year period of limitation contained within subdivision (2) would be inapplicable to plaintiff's action for breach of same. Square D Co. v. C.J. Kern Contractors, 314 N.C. 423, 334 S.E.2d 63 (1985).

A corporation may adopt a seal different from its corporate seal for a special occasion. Central Sys. v. General Heating & Air Conditioning Co., 48 N.C. App. 198, 268 S.E.2d 822, cert. denied, 301 N.C. 400, 273 S.E.2d 445 (1980).

Creditor's Lien Attached to Proceeds. - Although a creditor might be barred under North Carolina law from seeking collection under the terms of a promissory note, which was a sealed instrument, for debtor to defeat the creditor's claim of a secured interest in the proceeds of the property, he had to attack the related deed of trust (DOT) and the lien it secured on the property. Creditor's lien attached to the proceeds of a sale of the property, as the lien created by the DOT would not expire until 15 years after the note's maturity date, and no evidence was presented that the note was accelerated prior to that date. In re Merritt, - Bankr. - (Bankr. E.D.N.C. Sept. 21, 2018).

B. COUNTERCLAIMS.

.

Purpose of 1969 Amendment. - The 1969 amendment, allowing persons sued under sealed instruments to assert any claims or defenses they might have by joinder of third parties as allowable under the Rules of Civil Procedure (G.S. 1A-1), even though those claims might otherwise be barred by other limiting statutes, ameliorated the potential for harsh results in the situation where a financial institution could wait to sue for deficiency after repossession and sale of collateral security until after the buyer's rights of action against sellers for any breach of warranty were barred. The potential for abuse of the 10-year limitation was apparent in the situation where sellers and lenders were closely or inseparably related; the legislature chose to remedy this problem, not by reducing the length of time in which a lender or his assignee could sue on a sealed purchase money security agreement, but by increasing the period of time in which a buyer so sued could assert claims against his seller for breach, so that the time available to parties for either type of action is equal and concurrent when the holder of security interest sues first. North Carolina Nat'l Bank v. Holshouser, 38 N.C. App. 165, 247 S.E.2d 645 (1978).

Failure to denominate a claim as a counterclaim does not preclude its treatment as such. Patterson v. DAC Corp., 66 N.C. App. 110, 310 S.E.2d 783 (1984).

Counterclaim Under Truth-in-Lending Act. - In an action to recover under an installment sales contract, subdivision (2) of this section cannot be utilized to allow a counterclaim under the Federal Truth-in-Lending Act, 15 U.S.C. 1601, after the one-year limitation on actions under 15 U.S.C. 1640(e) has expired, since it is inconsistent with the new amendment to the federal act, 15 U.S.C. 1681. Ken-Lu Enters., Inc. v. Neal, 29 N.C. App. 78, 223 S.E.2d 831, cert. denied, 290 N.C. 308, 225 S.E.2d 829, cert. denied, 429 U.S. 1002, 97 S. Ct. 533, 50 L. Ed. 2d 614 (1976).

V. MORTGAGE FORECLOSURE.

.

This section is the only limitation upon mortgagee's right of action for foreclosure or sale. Parker v. Banks, 79 N.C. 480 (1878).

Prerequisites to Bar. - In order to bar an action for relief under this section, two things must occur, namely, the lapse of 10 years after the forfeiture or after the power of sale became absolute or after the last payment, and the possession of the mortgagor during that period. Woodlief v. Wester, 136 N.C. 162, 48 S.E. 578 (1904); Ownbey v. Parkway Properties, Inc., 222 N.C. 54, 21 S.E.2d 900 (1942).

In order for a foreclosure to be barred under this section, two events must occur: (1) The lapse of 10 years after the forfeiture or after the power of sale became absolute or after the last payment, and (2) the possession of the mortgagor during the entire 10-year period. These two requirements must be coexistent. In addition, possession for the 10-year period must be actual possession. In re Lake Townsend Aviation, Inc., 87 N.C. App. 481, 361 S.E.2d 409 (1987), cert. denied, 321 N.C. 473, 364 S.E.2d 922 (1988).

Constructive Possession Not Intended. - It is impossible to suppose that the legislature intended a constructive possession, for the "mortgagor or grantor" could never have such possession as against a mortgagee. The latter has the right of possession by construction of law, as he has the legal title, and if a constructive possession was intended, there was no use in requiring possession at all, as if neither party was in actual possession, the constructive possession would always be in the mortgagee. Dobbs v. Gullidge, 20 N.C. 197 (1838); Williams v. Wallace, 78 N.C. 354 (1878); London v. Bear, 84 N.C. 266 (1881); Deming v. Gainey, 95 N.C. 528 (1886); Simmons v. Ballard, 102 N.C. 105, 9 S.E. 495 (1889); Woodlief v. Wester, 136 N.C. 162, 48 S.E. 578 (1904); Ownbey v. Parkway Properties, Inc., 222 N.C. 54, 21 S.E.2d 900 (1942).

Where there is no possession by either party, there can be no running of the statute, and G.S. 1-56 would not apply in such a case. Woodlief v. Wester, 136 N.C. 162, 48 S.E. 578 (1904).

Actual possession of the life tenant does not inure to the remainderman. Thus, during the continuance of the life estate the remainderman cannot avail himself of that actual possession as against one who holds a mortgage on his interest for the purpose of barring his right under the mortgage. Malloy v. Bruden, 86 N.C. 251 (1882); Woodlief v. Wester, 136 N.C. 162, 48 S.E. 578 (1904).

Where a remainderman, not being in possession, executes a mortgage, the foreclosure of the mortgage is not barred after 10 years from the forfeiture thereof or from the last payment, such action being brought within 10 years from the time of the acquisition of the possession by the remainderman. Woodlief v. Wester, 136 N.C. 162, 48 S.E. 578 (1904).

When Holding of Mortgagor Becomes Adverse. - When the mortgagor of property is left in possession, he or his vendee holds it for the mortgagee, and his possession does not become adverse so as to set the statute in motion until the condition is broken. Woody v. Jones, 113 N.C. 253, 18 S.E. 205 (1893).

For cases decided under G.S. 1-56, holding that a party who remains in possession is not barred of any equity by lapse of time, and that the statute runs only where the other party has had possession, see Stith v. McKee, 87 N.C. 389 (1882); Mask v. Tiller, 89 N.C. 423 (1883); Thornburg v. Mastin, 93 N.C. 258 (1885); Norton v. McDevit, 122 N.C. 755, 122 N.C. 756, 30 S.E. 24 (1898). See also, Menzel v. Hinton, 132 N.C. 660, 44 S.E. 385, 95 Am. St. R. 647 (1903), explained in Woodlief v. Wester, 136 N.C. 162, 48 S.E. 578 (1904).

Extent of Protection Offered by Subdivision (3). - The protection offered by subdivision (3) of this section is not limited to the original mortgagor or grantor, but also extends to subsequent purchasers. In re Lake Townsend Aviation, Inc., 87 N.C. App. 481, 361 S.E.2d 409 (1987), cert. denied, 321 N.C. 473, 364 S.E.2d 922 (1988).

Subdivision (3) Inapplicable to Executory Contracts. - While the relation of vendor and vendee is in many respects similar to that existing between mortgagor and mortgagee, subdivision (3) of this section does not embrace actions arising out of executory contracts for sales of land. Overman v. Jackson, 104 N.C. 4, 10 S.E. 87 (1889).

Running of Statute. - Where note holder did not accelerate the maturity of the note even though he could have, the statute of limitations did not begin to run until the day the last payment on the note was due. In re Lake Townsend Aviation, Inc., 87 N.C. App. 481, 361 S.E.2d 409 (1987), cert. denied, 321 N.C. 473, 364 S.E.2d 922 (1988).

Ten-year statute of limitations did not begin to accrue until April 2010, the stipulated maturity date for two promissory notes. Because foreclosure proceedings were initiated in 2012, well within the statute of limitations, G.S. 1-47(3) did not bar the foreclosure action on either note. In re Foreclosure of the Deeds of Trust Executed by Brown, 240 N.C. App. 519, 771 S.E.2d 829 (2015).

Trial court erred in entering summary judgment in favor a bank reforming a deed of trust because the bank's reformation claim was time barred since it was filed two years after the limitations period provided by subsection 7(2) had expired. Wells Fargo Bank, N.A. v. Stocks, - N.C. App. - , 831 S.E.2d 378 (2019).

Institution of suit to foreclose by mortgagee in possession tolls operation of this section, and the right of the mortgagor to demand an accounting for the rents and profits is not barred during the pendency of the foreclosure suit. Anderson v. Moore, 233 N.C. 299, 63 S.E.2d 641 (1951).

Absence from State as Suspending Section. - An action to foreclose a mortgage comes within the purview of G.S. 1-21, and absence of the mortgagor from the State suspends the running of the statute. Love v. West, 169 N.C. 13, 84 S.E. 1048 (1915).

Effect of Bar of Debt upon Foreclosure. - The fact that a note is barred by the three-year statute does not prevent the mortgagee from foreclosing his mortgage securing it, this section being applicable. Jenkins v. Griffin, 175 N.C. 184, 95 S.E. 166 (1918). See also, Capehart v. Dettrick, 91 N.C. 344 (1884).

Although an action upon the debt secured by a mortgage may be barred by the lapse of time, the remedy appertaining to the security may be enforced. Overman v. Jackson, 104 N.C. 4, 10 S.E. 87 (1889).

Where a note has not been barred, foreclosure of a deed in trust securing it may be ordered. Geitner v. Jones, 176 N.C. 542, 97 S.E. 494 (1918).

A mortgage is an incident of the note it secures, and the statute of limitations will not run against its foreclosure when it has not run against the note. Humphrey v. Stephens, 191 N.C. 101, 131 S.E. 383 (1926).

Action to Recover Debt Not Barred by Subdivision (3). - Subdivision (3) of this section only bars an action to foreclose the mortgage, and does not bar an action to recover the debt secured by the mortgage. Fraser v. Bean, 96 N.C. 327, 2 S.E. 159 (1887).

Assignee was squarely within the requisite time frame in which it could bring its foreclosure action because the statute of limitations did not run until ten years after a final payment was made on an obligation, and a corporation made payments pursuant to the terms of a reorganization plan. In re Foreclosure of a N.C. Deed of Trust, 236 N.C. App. 544, 764 S.E.2d 221 (2014).

For cases holding that subdivision (3) is not applicable to powers of sale, see Menzel v. Hinton, 132 N.C. 660, 44 S.E. 385, 95 Am. St. R. 647 (1903); Cone v. Hyatt, 132 N.C. 810, 44 S.E. 678 (1903); Miller v. Coxe, 133 N.C. 578, 45 S.E. 940 (1903); Woodlief v. Wester, 136 N.C. 162, 48 S.E. 578 (1904); Spain v. Hines, 214 N.C. 432, 200 S.E. 25 (1938). But see G.S. 45-21.12

As to the bar now obtaining against exercise of a power of sale when foreclosure is barred, pursuant to G.S. 45-21.12 (formerly G.S. 45-26), see Jenkins v. Griffin, 175 N.C. 184, 95 S.E. 166 (1918); Humphrey v. Stephens, 191 N.C. 101, 131 S.E. 383 (1926).

Effect of Payment of Interest. - This section will not bar foreclosure on a deed of trust when, although the debt was due more than 10 years ago, interest has been paid on the debt within 10 years. Dixie Grocery Co. v. Hoyle, 204 N.C. 109, 167 S.E. 469 (1933).

Effect of Partial Payment. - Payment on a bond secured by a mortgage before it goes out of date and within 10 years before suit is brought will prevent the bar of the statute of limitations, and a purchaser of the land at a mortgage sale will not be barred. Williams v. Kerr, 113 N.C. 306, 18 S.E. 501 (1893).

Where partial payment is made on a note secured by a deed of trust, action to foreclose the instrument is not barred until 10 years from date of such payment. Smith v. Davis, 228 N.C. 172, 45 S.E.2d 51, 174 A.L.R. 643 (1947).

Part payment operating to start the running of the statute of limitations anew against the right of action to foreclose a mortgage or deed of trust is any payment on the debt secured by the instrument, and the action to foreclose is not barred within 10 years from such payment, notwithstanding that the part payment is applied to only one of the notes secured, resulting in the bar of the statute as to an action on the other note. Demai v. Tart, 221 N.C. 106, 19 S.E.2d 130 (1942).

Where a surety executes a mortgage on his own land, an action to foreclose the same is not barred until the expiration of 10 years. Miller v. Coxe, 133 N.C. 578, 45 S.E. 940 (1903).

Foreclosure Held Only Remedy in Absence of Signed Note. - Where plaintiff did not sign note and was not bound thereby, having executed only a deed of trust on her land as additional security for the debt, in the event of default in payment foreclosure of the deed of trust was the only action maintainable against her. This section, therefore, prescribed the time within which an action might be brought. Carter v. Bost, 209 N.C. 830, 184 S.E. 817 (1936).

Sale While Foreclosure Suit Was Pending. - Where a suit to foreclose a duly registered deed of trust was instituted prior to the bar of this section against the trustee, the cestuis and the assigns of the cestuis, and while the suit was pending but after expiration of the 10-year period prescribed by statute, the assigns of the cestuis sold the property, and upon discovering the transfer plaintiff had the purchasers made parties, the purchasers were chargeable with notice of the suit and acquired only that interest which their grantors then had, and they could not assert the bar of the statute. Massachusetts Bonding & Ins. Co. v. Knox, 220 N.C. 725, 18 S.E.2d 436, 138 A.L.R. 1438 (1942).

Relationship of Mortgagor and Mortgagee Established by Consent Judgment. - A consent judgment providing that defendant had an equity to redeem the land upon payment of a certain sum on or before a certain day, and that if this payment was timely made plaintiff would convey said land to defendant, but that in case of failure to pay within the time limited, defendant would stand absolutely debarred and foreclosed of and from any and all equity or other estate, established relationship of mortgagor and mortgagee, and notwithstanding the provision of strict foreclosure that relationship continued to exist after the day of forfeiture, so that under subdivision (3) of this section 10 years' possession by defendant, after default, barred plaintiff. Bunn v. Braswell, 139 N.C. 135, 51 S.E. 927 (1905).

Remedy of Mortgagor for Sale Under Barred Mortgage. - A sale under a mortgage barred by the statute would carry no title to the purchaser. The mortgagor, being in possession, would have a full defense to an action for ejectment when brought by the purchaser. Capehart v. Biggs & Co., 77 N.C. 261 (1877); Fox v. Kline, 85 N.C. 173 (1881); Hutaff v. Adrian, 112 N.C. 259, 17 S.E. 78 (1893).

Where a mortgagor in possession had a full defense to an action for ejectment brought by a purchaser at a sale under a mortgage barred by the statute of limitations, the court would not interfere by injunction to prevent a sale threatened by the mortgagee; however, it would be otherwise if there were a contest as to the amount due under the mortgage. Hutaff v. Adrian, 112 N.C. 259, 17 S.E. 78 (1893).

Section Must Be Specifically Pleaded. - In an action to foreclose a mortgage, the 10-year statute of limitations must be specially pleaded. Stancill v. Spain, 133 N.C. 76, 45 S.E. 466 (1903).

Power of Grantees to Plead. - In a foreclosure action, the grantees of a mortgagor are entitled to plead the statute of limitations. Stancill v. Spain, 133 N.C. 76, 45 S.E. 466 (1903).

As to prior law, see Pemberton v. Simmons, 100 N.C. 316, 6 S.E. 122 (1888).

VI. REDEMPTION OF MORTGAGES.

.

When Redemption Barred. - Where mortgagee has actual possession, either when the cause of action for redemption accrues or when he thereafter goes into and remains continuously in such possession for more than 10 years, before an action to redeem is commenced, the statute of limitations, where pleaded and relied upon in the answer, is a complete defense. Bernhardt v. Hagamon, 144 N.C. 526, 57 S.E. 222 (1907); Crews v. Crews, 192 N.C. 679, 135 S.E. 784 (1926).

Bar of Right to Redeem Bars Right to Accounting. - When the right to redeem is barred by this section, the right to enforce an accounting is likewise barred. Anderson v. Moore, 233 N.C. 299, 63 S.E.2d 641 (1951).

As to necessity that possession be in the mortgagee, see Simmons v. Ballard, 102 N.C. 105, 9 S.E. 495 (1889); Cauley v. Sutton, 150 N.C. 327, 64 S.E. 3 (1909).

It is not required that mortgagee's possession be adverse in order to bar mortgagor's action in 10 years under this section. Crews v. Crews, 192 N.C. 679, 135 S.E. 784 (1926).

But the possession required by this statute must be actual and not merely constructive. Weathersbee v. Goodwin, 175 N.C. 234, 95 S.E. 491 (1918); Stevens v. Turlington, 186 N.C. 191, 119 S.E. 210 (1923); Crews v. Crews, 192 N.C. 679, 135 S.E. 784 (1926).

Possession presumed by virtue of G.S. 1-42 is not sufficient to meet the requirements of subdivision (4) of this section, for even if more than 10 years have passed since the cause of action accrued, an action for redemption under subdivision (4) is not barred unless the mortgagee has during said time been in the actual possession of the land conveyed by the mortgage. Simmons v. Ballard, 102 N.C. 105, 9 S.E. 495 (1889); Cauley v. Sutton, 150 N.C. 327, 64 S.E. 3 (1909); McNair v. Boyd, 163 N.C. 478, 79 S.E. 966 (1913); Crews v. Crews, 192 N.C. 679, 135 S.E. 784 (1926).

Redemption of Mortgage Held Barred. - Where mortgagee had been in possession more than 30 years since execution of the mortgage, the right of redemption was barred. Gray v. Williams, 130 N.C. 53, 40 S.E. 843 (1902).

Where, in accordance with agreement expressed in instrument, mortgagee entered at once into possession of lands, mortgagor's right for an accounting arose when the bond which the instrument secured had matured and remained unpaid; and his right of action and that of those claiming under him accrued then, and the mortgagor's right of action was barred by a continued peaceful possession by the mortgagee for 10 years therefrom. G.S. 1-42 did not apply. Crews v. Crews, 192 N.C. 679, 135 S.E. 784 (1926).

Where mortgagee was permitted to remain in actual possession of mortgaged land, as mortgagee, for a period of 10 years, and in the meantime the mortgage debt was not paid and no action to foreclose or redeem was instituted, title to the premises would be deemed to be in him, and the 10-year statute of limitations, if properly pleaded and relied upon, would be a complete defense to an action to redeem. Anderson v. Moore, 233 N.C. 299, 63 S.E.2d 641 (1951).


§ 1-48: Transferred to G.S. 1-54(6), by Session Laws 1951, c. 837, s. 2.



§ 1-49. Seven years.

Within seven years an action -

  1. Repealed by Session Laws 1961, c. 115, s. 1.
  2. By a creditor of a deceased person against his personal or real representative, within seven years next after the qualification of the executor or administrator and his making the advertisement required by law for creditors of the deceased to present their claims, where no personal service of such notice in writing is made upon the creditor. A creditor thus barred of a recovery against the representative of any principal debtor is also barred of a recovery against any surety to the debt.
  3. Against the owner of an interest in real property by a unit of local government for a violation of a land-use statute, ordinance, or permit or any other official action concerning land use carrying the effect of law. This subdivision does not limit the remedy of injunction for conditions that are actually injurious or dangerous to the public health or safety but does prescribe an outside limitation of seven years from the earlier of the occurrence of any of the following:
    1. The violation is apparent from a public right-of-way.
    2. The violation is in plain view from a place to which the public is invited.

History

(C.C.P., s. 32; Code, s. 153; Rev., s. 392; C.S., s. 438; 1961, c. 115, s. 1; 2017-10, s. 2.15(b).)

Cross References. - As to notice to creditors of decedent, see G.S. 28A-14-1 et seq.

As to claims against estate, see G.S. 28A-19-1 et seq.

Editor's Note. - Session Laws 2017-10, s. 2.15(c), made subdivision (3) of this section, as added by Session Laws 2017-10, s. 2.15(b), effective October 1, 2018, and applicable to actions commenced on or after that date.

Effect of Amendments. - Session Laws 2017-10, s. 2.15(b), added subdivision (3). For effective date and applicability, see editor's note.

CASE NOTES

Purpose of Section. - The present limitations in favor of estates of deceased persons are unconnected with assets and are intended to stimulate the vigilance of creditors and give repose to the estates of deceased debtors. Lawrence v. Norfleet, 90 N.C. 533 (1884).

This section must be construed with G.S. 1-52. Joyner v. Massey, 97 N.C. 148, 1 S.E. 702 (1887).

And with G.S. 1-22. Redmond v. Pippen, 113 N.C. 90, 18 S.E. 50 (1893).

Statute as Absolute Bar. - After the time prescribed in this section, the statute is an absolute bar to creditors. Lawrence v. Norfleet, 90 N.C. 533 (1884); Worthy v. McIntosh, 90 N.C. 536 (1884).

Regardless of Whether There Are Assets in Hands of Representatives. - This statute is an absolute bar unless suit is brought within the time specified, whether or not there be assets in the hands of the representative. Lawrence v. Norfleet, 90 N.C. 533 (1884).

This section contemplates claims upon which right of action had accrued at the time of qualification; as to those upon which the right of action subsequently accrues, the statute begins to run from the date of such accrual. Miller v. Shoaf, 110 N.C. 319, 14 S.E. 800 (1892).

The language of the statute is confined to actions by a creditor, whereas the duty to subject the land rests primarily on the personal representative. It would be anomalous to bar the creditor in seven years under this section and the personal representative in 10 years under G.S. 1-56. Lee v. McKoy, 118 N.C. 518, 24 S.E. 210 (1896).

Section Applies to Actions Against Representatives. - This section applies to an action against a personal, and where necessary, the real representatives, to compel the performance of some right of which the debt itself is the foundation. Lister v. Lister, 222 N.C. 555, 24 S.E.2d 342 (1943).

The statute was intended to be restricted to cases where the creditor's action lies against the personal representative as such, e.g., the right to enforce specific performance or some lien or trust not covered by other provisions of the Code. Smith v. Brown, 101 N.C. 347, 7 S.E. 890 (1888).

Application of Section to Suit Between Administrators. - Where a suit is brought by one administrator against another, it must be commenced within seven years next after the right of action vests in the plaintiff under his appointment. Lawrence v. Norfleet, 90 N.C. 533 (1884).

Prerequisites to Running of Statute. - The mere lapse of seven years does not create the bar; it must be coupled with the advertisement, or personal notice, and when these have been made, the statute will begin to run from the date of the qualification of the executor or administrator. Love v. Ingram, 104 N.C. 600, 10 S.E. 77 (1889).

The executor or administrator must show that seven years have transpired after his qualification before commencement of the action, and that he has advertised as required by law. Without proof of the advertisement, the plea of the statute of limitations cannot avail him. Cox v. Cox, 84 N.C. 138 (1881).

Time to Be Computed from Qualification of Representative. - While the advertisement is an indispensable prerequisite to the operation of the statute, it is incidental, and the time must be computed from qualification of the representative. Cox v. Cox, 84 N.C. 138 (1881); Lawrence v. Norfleet, 90 N.C. 533 (1884).

Conditions Preventing Running of Statute. - Nothing will defeat the operation of the statute except the disabilities mentioned in the Code or such fraud or other matter of equitable nature as would make it against conscience to rely on the statute. Syme v. Badger, 96 N.C. 197, 2 S.E. 61 (1887), overruled on other grounds, Lee v. McKoy, 118 N.C. 518, 24 S.E. 210 (1896).

Pendency of Suit as Suspension of Statute. - If an action is brought by a creditor against the personal representative of deceased debtor within seven years, etc., but by reason of delays the court's judgment is not obtained until after seven years, the real representative is not protected by the statute of limitations when it is sought to subject the decedent's lands to the payment of such debt. Lee v. McKoy, 118 N.C. 518, 24 S.E. 210 (1896), overruling Syme v. Badger, 96 N.C. 197, 2 S.E. 61 (1887) insofar as it holds to the contrary. See also, Smith v. Brown, 101 N.C. 347, 7 S.E. 890 (1888); Woodlief v. Bragg, 108 N.C. 571, 13 S.E. 211 (1891).

Creditor Who Is Not Barred Against Representative Not Barred Against Land. - When creditor, seeking merely to collect his debt, is not barred as against the personal representative, he cannot be barred as against the land which that representative is to subject. The liability is that of the land, and not that of the heir as such. Lee v. McKoy, 118 N.C. 518, 24 S.E. 210 (1896).

Proceedings Which Were Not Barred Against Representative Not Barred Against Heirs. - Where proceedings against administratrix were instituted within the seven years after her qualification and making advertisement, though the heirs at law were not made parties to the proceedings until after the lapse of seven years, the proceedings, not being barred as to the personal representative, could not be barred as to the heirs at law by this section. Lee v. McKoy, 118 N.C. 518, 24 S.E. 210 (1896).

Necessity for Full Administration. - Creditors of a deceased person whose claims were due at the death of the debtor are barred after seven years next after letters are granted, provided the estate has been fully administered. Morris v. Syme, 88 N.C. 453 (1883).

As to what must be pleaded and proved by the administrator, see Little v. Duncan, 89 N.C. 416 (1883).

Heirs as Parties. - In order to save circumlocution the heirs at law may be made parties to the proceedings against the personal representative. Lilly v. Wooley, 94 N.C. 412 (1886); Syme v. Badger, 96 N.C. 197, 2 S.E. 61 (1887), overruled on other grounds in Lee v. McKoy, 118 N.C. 518, 24 S.E. 210 (1896); Brittain v. Dickson, 104 N.C. 547, 10 S.E. 701 (1889); Lee v. McKoy, 118 N.C. 518, 24 S.E. 210 (1896).

Death of surety and lapse of time longer than that prescribed before qualification of personal representative did not suspend the operation of the statute, if during that time the wards could have proceeded against the guardian. Williams v. McNair, 98 N.C. 332, 4 S.E. 131 (1887).

Section Held Inapplicable. - This section did not apply to an action brought to obtain possession of land bought for plaintiff's mother with plaintiff's money but conveyed to the former, the action being brought against the husband of the grantee after her death. Norton v. McDevit, 122 N.C. 755, 30 S.E. 24 (1898).

Action Barred by Laches. - Where, in an action instituted 14 years after testator's death, plaintiff claimed the proceeds of an insurance policy payable to testator's estate, and contended that the policy was taken out by him to secure him for funds advanced to the testator, it was held that the rights of creditors having intervened, the record disclosed conduct on the part of the plaintiff barring the action for laches. Strayhorn v. Aycock, 215 N.C. 43, 200 S.E. 912 (1939).

As to prior law, see Godley v. Taylor, 14 N.C. 178 (1831); Cooper v. Cherry, 53 N.C. 323 (1861); McKeithan v. McGill, 83 N.C. 517 (1880); Morris v. Syme, 88 N.C. 453 (1883); Syme v. Badger, 96 N.C. 197, 2 S.E. 61 (1887), overruled on other grounds, Lee v. McKoy, 118 N.C. 518, 24 S.E. 210 (1896).

Cited in Reid v. Bristol, 241 N.C. 699, 86 S.E.2d 417 (1955).


§ 1-50. Six years.

  1. Within six years an action -
    1. Repealed by Session Laws 1997-297, s. 1.
    2. Against an executor, administrator, collector, or guardian on his official bond, within six years after the auditing of his final account by the proper officer, and the filing of the audited account as required by law.
    3. For injury to any incorporeal hereditament.
    4. Against a corporation, or the holder of a certificate or duplicate certificate of stock in the corporation, on account of any dividend, either a cash or stock dividend, paid or allotted by the corporation to the holder of the certificate or duplicate certificate of stock in the corporation.
      1. No action to recover damages based upon or arising out of the defective or unsafe condition of an improvement to real property shall be brought more than six years from the later of the specific last act or omission of the defendant giving rise to the cause of action or substantial completion of the improvement. (5) a. No action to recover damages based upon or arising out of the defective or unsafe condition of an improvement to real property shall be brought more than six years from the later of the specific last act or omission of the defendant giving rise to the cause of action or substantial completion of the improvement.
      2. For purposes of this subdivision, an action based upon or arising out of the defective or unsafe condition of an improvement to real property includes:
        1. Actions to recover damages for breach of a contract to construct or repair an improvement to real property;
        2. Actions to recover damages for the negligent construction or repair of an improvement to real property;
        3. Actions to recover damages for personal injury, death or damage to property;
        4. Actions to recover damages for economic or monetary loss;
        5. Actions in contract or in tort or otherwise;
        6. Actions for contribution indemnification for damages sustained on account of an action described in this subdivision;
        7. Actions against a surety or guarantor of a defendant described in this subdivision;
        8. Actions brought against any current or prior owner of the real property or improvement, or against any other person having a current or prior interest therein;
        9. Actions against any person furnishing materials, or against any person who develops real property or who performs or furnishes the design, plans, specifications, surveying, supervision, testing or observation of construction, or construction of an improvement to real property, or a repair to an improvement to real property.
      3. For purposes of this subdivision, "substantial completion" means that degree of completion of a project, improvement or specified area or portion thereof (in accordance with the contract, as modified by any change orders agreed to by the parties) upon attainment of which the owner can use the same for the purpose for which it was intended. The date of substantial completion may be established by written agreement.
      4. The limitation prescribed by this subdivision shall not be asserted as a defense by any person in actual possession or control, as owner, tenant or otherwise, of the improvement at the time the defective or unsafe condition constitutes the proximate cause of the injury or death for which it is proposed to bring an action, in the event such person in actual possession or control either knew, or ought reasonably to have known, of the defective or unsafe condition.
      5. The limitation prescribed by this subdivision shall not be asserted as a defense by any person who shall have been guilty of fraud, or willful or wanton negligence in furnishing materials, in developing real property, in performing or furnishing the design, plans, specifications, surveying, supervision, testing or observation of construction, or construction of an improvement to real property, or a repair to an improvement to real property, or to a surety or guarantor of any of the foregoing persons, or to any person who shall wrongfully conceal any such fraud, or willful or wanton negligence.
      6. This subdivision prescribes an outside limitation of six years from the later of the specific last act or omission or substantial completion, within which the limitations prescribed by G.S. 1-52 and 1-53 continue to run. For purposes of the three-year limitation prescribed by G.S. 1-52, a cause of action based upon or arising out of the defective or unsafe condition of an improvement to real property shall not accrue until the injury, loss, defect or damage becomes apparent or ought reasonably to have become apparent to the claimant. However, as provided in this subdivision, no action may be brought more than six years from the later of the specific last act or omission or substantial completion.
      7. The limitation prescribed by this subdivision shall apply to the exclusion of G.S. 1-15(c), G.S. 1-52(16) and G.S. 1-47(2).
    5. Repealed by Session Laws 2009-420, s. 1, effective October 1, 2009, and applicable to causes of action that accrue on or after that date.
    6. Recodified as G.S. 1-47(6) by Session Laws 1995 (Regular Session, 1996), c. 742, s. 1.
  2. This section applies to actions brought by a private party and to actions brought by the State or a political subdivision of the State.

History

(C.C.P., s. 33; Code, s. 154; Rev., s. 393; C.S., s. 439; 1931, c. 169; 1963, c. 1030; 1979, c. 654, s. 2; 1981, c. 644, s. 1; 1991, c. 268, s. 2; 1995, c. 291, s. 1; 1995 (Reg. Sess., 1996), c. 742, s. 1(a); 1997-297, s. 1; 2009-420, s. 1.)

Cross References. - For three-year limitation applicable to actions upon the official bond of a public officer, see now G.S. 1-52(1a).

For three-year limitation applicable to actions against sureties of executors, etc., on their principal's official bond, see G.S. 1-52(6).

As to bond of personal representative, see G.S. 28A-8-1 et seq.

As to limitations period for unknown and certain other claims against a dissolved corporation, see G.S. 55-14-07.

As to product liability actions, see G.S. 99B-1 et seq.

Legal Periodicals. - For survey of 1979 commercial law, see 58 N.C.L. Rev. 1290 (1980).

For article, "North Carolina's New Products Liability Act: A Critical Analysis," see 16 Wake Forest L. Rev. 171 (1980).

For article discussing product liability as affected by statutes of repose, see 61 N.C.L. Rev. 33 (1982).

For survey of 1982 law on civil procedure, see 61 N.C.L. Rev. 991 (1983).

For comment on the effect of Lamb v. Wedgewood S. Corp., 308 N.C. 419, 302 S.E.2d 868 (1983), on future cases determining the constitutionality of subdivision (6) of this section, see 19 Wake Forest L. Rev. 1049 (1983).

For note, "Wilder v. Amatex Corp.: A First Step Toward Ameliorating the Effect of Statutes of Repose on Plaintiffs with Delayed Manifestation Diseases," see 64 N.C.L. Rev. 416 (1986).

For note on six year statutory bar to products liability actions, in light of Tetterton v. Long Manufacturing Co., 314 N.C. 44, 332 S.E.2d 67 (1985), see 64 N.C.L. Rev. 1157 (1986).

For survey of North Carolina construction law, with particular reference to statutes of limitation and repose, see 21 Wake Forest L. Rev. 633 (1986).

For survey, "Contract Warranties and Remedies: A Comprehensive Survey of the Creation, Modification and Exclusion of Contract Warranties and Remedies for Attorneys and Contracting Professionals," see 14 Campbell L. Rev. 323 (1993).

For note, "Do You Need 'Will Insurance'? Let the Testator Beware - Hargett v. Holland," see 21 N.C. Cent. L.J. 353 (1995).

CASE NOTES

I. IN GENERAL.

This section and G.S. 1-15(c) are not unconstitutional as being violative of the open courts provision of the State Constitution and the equal protection clauses of the state and federal Constitutions. Tetterton v. Long Mfg. Co., 314 N.C. 44, 332 S.E.2d 67 (1985); Square D Co. v. C.J. Kern Contractors, 314 N.C. 423, 334 S.E.2d 63 (1985).

Subdivision (6) does not grant "exclusive or separate emoluments or privileges" to the persons it protects in violation of N.C. Const., Art. I, § 32. Tetterton v. Long Mfg. Co., 314 N.C. 44, 332 S.E.2d 67 (1985).

This section does not distinguish between manufacturers and retail sellers of products who are protected from liability beyond the six-year period of repose and does not violate the equal protection clauses of the state or federal Constitutions. Tetterton v. Long Mfg. Co., 314 N.C. 44, 332 S.E.2d 67 (1985).

Statute of Repose Properly Applied Under Lex Loci Delicti. - Application of G.S. 1-50(a)(5) to a case for damages arising from a bridge collapse in North Carolina alleging resulting from defective concreted double tees manufactured in South Carolina, and dismissal of the case, were proper because a statute of repose created a substantive right, and the substantive law governing tort claims was determined the lex loci delicti doctrine; further, public policy was not violated by the two year difference in South Carolina's statute of repose, S.C. Code Ann. § 15-3-640 and North Carolina's statute of repose, and therefore the case was time-barred. Nash v. Tindall Corp., 375 S.C. 36, 650 S.E.2d 81 (Aug. 2, 2007).

This section must be affirmatively pleaded. Humble v. Mebane, 89 N.C. 410 (1883).

Burden on Plaintiff When Statute Is Pleaded. - Upon defendant's plea of the statute of limitations, the burden devolved upon plaintiffs to show that their action was not barred, but was instituted within the time permitted by statute. Bennett v. Anson Bank & Trust Co., 265 N.C. 148, 143 S.E.2d 312 (1965).

As to the time for bringing actions on bonds under prior law, see Humble v. Mebane, 89 N.C. 410 (1883).

Summary judgment was properly granted to a tire manufacturer on the ground that its products liability claims were barred by the six-year statute of repose in G.S. 1-50(a)(6), in that the tire in question was manufactured in 1995, and suit was not filed until 2005; date that tire was sold was unknown, and speculation that the tire had been purchased inside the repose period was not allowed. Robinson v. Bridgestone/Firestone N. Am. Tire, L.L.C., 209 N.C. App. 310, 703 S.E.2d 883 (2011), review denied 365 N.C. 202, 710 S.E.2d 21, 2011 N.C. LEXIS 439 (N.C. 2011).

Failure to Raise Issue in Principal Brief. - Although the city asserted in its reply brief that the mother's claim was barred by the six-year statute of repose provided by G.S. 1-50(a)(5), it did not raise the issue in its principal brief, but raised it only in its reply brief, filed pursuant to N.C. R. App. P. 28(h)(3), which limited the reply brief to a concise rebuttal to arguments set out in the brief of the appellee which were not addressed in the appellant's principal brief. Thus, the city, by its failure to advance the issue in its principal brief, abandoned its assignment of error relating to the denial of its motion for summary judgment on the ground of G.S. 1-50(a)(5). Beckles-Palomares v. Logan, 202 N.C. App. 235, 688 S.E.2d 758 (2010).

Applied in Cole v. Cole, 633 F.2d 1083 (4th Cir. 1980); Martin v. Smith, 534 F. Supp. 804 (W.D.N.C. 1982); Pangburn v. Saad, 73 N.C. App. 336, 326 S.E.2d 365 (1985); Oates v. Jag, Inc., 314 N.C. 276, 333 S.E.2d 222 (1985); Driver v. Burlington Aviation, Inc., 110 N.C. App. 519, 430 S.E.2d 476 (1993); Bryant v. Don Galloway Homes, Inc., 147 N.C. App. 655, 556 S.E.2d 597 (2001); Hodge v. Harkey, 178 N.C. App. 222, 631 S.E.2d 143 (2006); Peach v. City of High Point, 199 N.C. App. 359, 683 S.E.2d 717 (2009), review denied, 363 N.C. 806, 691 S.E.2d 15, N.C. LEXIS 69 (2010).

Cited in Commissioners of Moore County v. MacRae, 89 N.C. 95 (1883); J.G. Dudley Co. v. Commissioner, 298 F.2d 750 (4th Cir. 1962); Jewell v. Price, 264 N.C. 459, 142 S.E.2d 1 (1965); State ex rel. Williams v. Adams, 288 N.C. 501, 219 S.E.2d 198 (1975); Shuler v. Gaston County Dyeing Mach. Co., 30 N.C. App. 577, 227 S.E.2d 634 (1976); North Carolina State Ports Auth. v. Lloyd A. Fry Roofing Co., 32 N.C. App. 400, 232 S.E.2d 846 (1977); Earls v. Link, Inc., 38 N.C. App. 204, 247 S.E.2d 617 (1978); Feibus & Co. v. Godley Constr. Co., 44 N.C. App. 133, 260 S.E.2d 665 (1979); Town of Scotland Neck v. Western Sur. Co., 46 N.C. App. 124, 264 S.E.2d 917 (1980); Moore v. Moody, 304 N.C. 719, 285 S.E.2d 811 (1982); Tyson v. North Carolina Nat'l Bank, 305 N.C. 136, 286 S.E.2d 561 (1982); Tetterton v. Long Mfg. Co., 67 N.C. App. 628, 313 S.E.2d 250 (1984); Pembee Mfg. Corp. v. Cape Fear Constr. Co., 69 N.C. App. 505, 317 S.E.2d 41 (1984); Lowe v. Tarble, 312 N.C. 467, 323 S.E.2d 19 (1984); Black v. Littlejohn, 312 N.C. 626, 325 S.E.2d 469 (1985); Terry v. Pullman Trailmobile, 92 N.C. App. 687, 376 S.E.2d 47 (1989); State ex rel. State Art Museum Bldg. Comm'n v. Travelers Indem. Co., 111 N.C. App. 330, 432 S.E.2d 419 (1993); Cage v. Colonial Bldg. Co, 111 N.C. App. 828, 433 S.E.2d 827 (1993); Rudd v. Electrolux Corp., 982 F. Supp. 355 (M.D.N.C. 1997); Rhyne v. K-Mart Corp., 358 N.C. 160, 594 S.E.2d 1 (2004); Irby v. Freese, 206 N.C. App. 503, 696 S.E.2d 889 (2010), review denied, 705 S.E.2d 371, 2010 N.C. LEXIS 1023 (2010); Domingue v. Nehemiah II, Inc., 208 N.C. App. 429, 703 S.E.2d 462 (2010); KB Aircraft Acquisition, LLC v. Berry, 249 N.C. App. 74, 790 S.E.2d 559 (2016).

II. BONDS OF EXECUTORS, ADMINISTRATORS, COLLECTORS OR GUARDIANS.

Purpose of Section. - This section is intended to limit the liability of executors, administrators, next of kin and heirs of decedents, and after reasonable time, to give quiet and repose to the estate of dead men. Andres v. Powell, 97 N.C. 155, 2 S.E. 235 (1887).

This Section and G.S. 1-52(6) and 1-56 Distinguished. - Subdivision (2) of this section expressly applies to actions on the "official bond," while G.S. 1-52(6) applies to sureties only, and G.S. 1-56, insofar as executors, administrators and guardians are concerned, is applicable only when there has been a settlement, either by acts of the parties or a decree of court. Woody v. Brooks, 102 N.C. 334, 9 S.E. 294 (1889).

Persons Against Whom Section Is Absolute Bar. - An action must be brought against an executor or administrator by a creditor, legatee or next of kin of the decedent within six years after the filing of the final account, or it will be barred by the statute. Andres v. Powell, 97 N.C. 155, 2 S.E. 235 (1887). See also, Spruill v. Sanderson, 79 N.C. 466 (1878); Vaughan v. Hines, 87 N.C. 445 (1882); Woody v. Brooks, 102 N.C. 334, 9 S.E. 294 (1889).

This statute protects the surety as well as the principal. Andres v. Powell, 97 N.C. 155, 2 S.E. 235 (1887); Kennedy v. Cromwell, 108 N.C. 1, 13 S.E. 135 (1891).

Additional Protection of Sureties Under G.S. 1-52(6). - In addition to the protection of this section, the sureties on the bond are exonerated unless action is brought within three years after breach of the bond under subdivision (6) of G.S. 1-52. Woody v. Brooks, 102 N.C. 334, 9 S.E. 294 (1889).

Where the cause of action against an executor, administrator or guardian is for a breach of the bond, it is barred as to the sureties after three years from the breach complained of under subdivision (6) of G.S. 1-52. Kennedy v. Cromwell, 108 N.C. 1, 13 S.E. 135 (1891).

When Applicable to Action for Distributive Shares. - The statute does not run in favor of administrators against the suit of the next of kin for their distributive shares, unless the action is on the bond to recover the amount of such share. Vaughan v. Hines, 87 N.C. 445 (1882). See also, Woody v. Brooks, 102 N.C. 334, 9 S.E. 294 (1889).

When Applicable to Action for Balance Due. - No statute of limitations is a bar to an action to recover a balance admitted by a personal representative to be due legatees or distributees on his final account, unless he can show that he has disposed of such balance in some way authorized by law, or unless three years have elapsed since a demand and refusal to pay such admitted balance. Woody v. Brooks, 102 N.C. 334, 9 S.E. 294 (1889).

The final account is the initial point at which the statute begins to run, to actions upon the bond for a breach of its obligations, but leaves the representative, in his fiduciary capacity, exposed to the demand of the fiduciary or creditor, the latter losing his remedy under the condition set out in G.S. 1-49. Woody v. Brooks, 102 N.C. 334, 9 S.E. 294 (1889).

After the final account the statute runs against the next of kin, and an action against the administrator upon his official bond is barred after six years from the auditing of his final account. Andres v. Powell, 97 N.C. 155, 2 S.E. 235 (1887).

And until a final account is filed and audited there can be no bar; nor is there any as to a balance admitted to be due by such final account, unless the executor or administrator can show that he has disposed of it in some way authorized by law, or unless there has been a demand and a refusal to pay such admitted balance, in which case the action is barred in three years after such demand and refusal. Woody v. Brooks, 102 N.C. 334, 9 S.E. 294 (1889).

The bar is unavailable under this section unless there has been an account audited for the guardian, or unless there has been a lapse of three years from the breach of the bond in favor of the surety. Humble v. Mebane, 89 N.C. 410 (1883).

Action must be brought within six years after auditing and filing of the account. Woody v. Brooks, 102 N.C. 334, 9 S.E. 294 (1889).

As to effect of failure to make final settlement, see Self v. Shugart, 135 N.C. 185, 47 S.E. 484 (1904).

Significance of Demand Irrespective of Final Account. - Whether or not final account is filed, if there is a demand and refusal the action is barred as to both the principal and sureties on the bond in three years under subdivision (6) of G.S. 1-52. Kennedy v. Cromwell, 108 N.C. 1, 13 S.E. 135 (1891).

Action by ward against sureties on guardian's bond is barred after three years from the time the ward becomes of age if the guardian makes no final settlement, and within six years if the guardian makes a final settlement. Self v. Shugart, 135 N.C. 185, 47 S.E. 484 (1904).

Where there was no one in esse who could sue upon the bond from the death of the first administrator until the qualification of the administrator de bonis non, that time should not be counted in applying the statute of limitations in an action against the sureties. Brawley v. Brawley, 109 N.C. 524, 14 S.E. 73 (1891).

Action Not Barred. - An action against a guardian for failure to pay ward the balance of the estate due him after the ward attained his majority was not barred by the six-year statute of limitations where the guardian had not filed a final account as required under this section, the statute not applying to such action. State ex rel. Finn v. Fountain, 205 N.C. 217, 171 S.E. 85 (1933).

Action Held Barred. - Where guardian qualified in July, 1872, his ward came of age the following September, and the guardian died without having settled his trust or making any of the returns required, when in 1887 the ward made a demand upon and brought suit against the sureties on the bond, it was held that his action was barred. Norman v. Walker, 101 N.C. 24, 7 S.E. 468 (1888).

Where distributees, who until they became of age had a guardian, did not bring suit for an alleged balance due under testator's will for 15 years after the executor filed his final account, the action was barred by either this section or G.S. 1-56. Culp v. Lee, 109 N.C. 675, 14 S.E. 74 (1891).

Section Held Inapplicable. - Where an action was not brought upon official bond as administrator of the testator of the defendant, but it was brought to compel an account and settlement of the estate of the intestate of the plaintiff in his hands in his lifetime, defendant was a trustee of an express trust, and the statute of limitations did not apply. Woody v. Brooks, 102 N.C. 334, 9 S.E. 294 (1889).

III. INCORPOREAL HEREDITAMENTS.

.

Restrictive Covenant Governed by Subdivision (3). - An action to enforce a restrictive covenant is governed by subdivision (3) of this section. A restrictive covenant is a servitude, commonly referred to as a negative easement, and an easement is an incorporeal hereditament. This section requires that an action for injury to any incorporeal hereditament be brought within six years. Hawthorne v. Realty Syndicate, Inc., 43 N.C. App. 436, 259 S.E.2d 591 (1979), aff'd, 300 N.C. 660, 268 S.E.2d 494, rehearing denied, 301 N.C. 107, 273 S.E.2d 442 (1980).

Six year statute of limitations applies to a restrictive covenant as a contract under seal. Allen v. Sea Gate Ass'n, 119 N.C. App. 761, 460 S.E.2d 197 (1995).

In case involving residential restrictive covenant rather than an encroachment and/or prescriptive easement, the court applied six-year statute of limitations to bar case, rather than 20 year "prescriptive period." Karner v. Roy White Flowers, Inc., 134 N.C. App. 645, 518 S.E.2d 563 (1999), rev'd, 351 N.C. 433, 527 S.E.2d 40 (2000).

Where the court found conflicting evidence as to whether plaintiffs were aware or should have reasonably been aware of the violation of residential restrictive covenant, continually for six years, on three of four lots at issue, a directed verdict was inappropriate. Karner v. Roy White Flowers, Inc., 134 N.C. App. 645, 518 S.E.2d 563 (1999), rev'd, 351 N.C. 433, 527 S.E.2d 40 (2000).

Action Timely. - Condominium owner's action seeking to enforce the right to a parking space was not time barred under G.S. 1-50(a)(3) since the limitations period did not begin to run until the owner purchased the unit, and the owner filed the action within six years of that date. Ocracomax, LLC v. Davis, 248 N.C. App. 532, 788 S.E.2d 664 (2016).

Statute of limitations for a lawsuit based upon encroachment on an easement is six years, and the statute of limitations for a claim based on injury to an easement runs from the time that the claim accrues, even if a plaintiff is not aware of the injury at that time. Therefore, a claim was time barred when it was not filed within 6 years of the completion of a house that encroached on an easement; completion occurred at the latest when a certificate of occupancy was issued. Duke Energy Carolinas, LLC v. Gray, 237 N.C. App. 420, 766 S.E.2d 354 (2014).

Actions Involving Encroachments on Easements. - Trial court erred in granting summary judgment in favor of a utility company upon finding that its claim was barred by G.S. 1-50(a)(3) because the claim was subject to the twenty-year statute of limitations set forth in G.S. 1-40 because the company sought to recover full use of its easement, and because the easement was real property, the action was for the recovery of real property. Duke Energy Carolinas, LLC v. Gray, 369 N.C. 1, 789 S.E.2d 445 (2016).

Utility Easements. - Utility facilities crisscross the state above, on, and beneath the ground, and their accompanying easements are not always readily subject to routine inspection by the owning utility; the drafters of subsection (a)(3) of G.S. 1-50 did not intend that a utility's right to maintain such easements could be successfully challenged in a time as short as six years. Duke Energy Carolinas, LLC v. Gray, 369 N.C. 1, 789 S.E.2d 445 (2016).

IV. DEFECTIVE CONDITION OF IMPROVEMENTS TO REAL PROPERTY.

.

Editor's Note. - Many of the cases cited below were decided under subdivision (5) of this section as it read prior to the 1981 amendment.

Constitutionality of Subdivision (5). - The class created by subdivision (5) of this section as it stood prior to the 1981 amendment had a rational basis, and such subdivision did not violate U.S. Const., Amend. XIV, or the law of the land clause of N.C. Const., Art. I, § 19. Lamb v. Wedgewood S. Corp., 55 N.C. App. 686, 286 S.E.2d 876 (1982), modified and aff'd, 308 N.C. 419, 302 S.E.2d 868 (1983).

Subdivision (5) of this section as it read prior to the 1981 amendment did not impermissibly distinguish between architects, engineers, and contractors, who are protected from liability beyond the six-year period, and materialmen, suppliers, manufacturers and persons in actual possession and control of the property, who are not. Therefore, it did not violate the equal protection provisions of either the federal or State Constitutions. Lamb v. Wedgewood S. Corp., 308 N.C. 419, 302 S.E.2d 868 (1983).

The legislature has not, in subdivision (5) of this section, absolutely abolished all claims against builders and designers arising out of improvements they built or designed. Rather, it has established a time period beyond which such claims may not be brought even if the injury giving rise to the claim does not occur until the time period has elapsed. This condition to the legal cognizability of a claim does not violate the constitutional guarantee under N.C. Const., Art. I, § 18, that for every "injury done" there shall be a "remedy." Lamb v. Wedgewood S. Corp., 308 N.C. 419, 302 S.E.2d 868 (1983).

The classification under subdivision (5) of this section, as it read prior to the 1981 amendment, did not create a special emolument or privilege within the meaning of N.C. Const., Art. I, § 32. Lamb v. Wedgewood S. Corp., 308 N.C. 419, 302 S.E.2d 868 (1983).

Subdivision (5) Is Substantive. - Subdivision (5) of this section, like many others enacted throughout the nation, is a statute of repose, which constitutes a substantive definition of, rather than a procedural limitation on, rights. Lamb v. Wedgewood S. Corp., 308 N.C. 419, 302 S.E.2d 868 (1983).

Paragraph a of subdivision (5) of this section is substantive in nature and imposes, as a condition precedent to a cause of action, that plaintiff establish that the action is brought within six years of the completion of the improvement or last negligent act of the defendant, whichever occurs later, even though the injury or damage may not have occurred before the expiration of the time limitation. Sink v. Andrews, 81 N.C. App. 594, 344 S.E.2d 831 (1986).

Purpose of Subdivision (5). - Subdivision (5) of this section is designed to limit the potential liability of architects, contractors, and perhaps others in the construction industry for improvements made to real property. Lamb v. Wedgewood S. Corp., 308 N.C. 419, 302 S.E.2d 868 (1983).

Purpose of subdivision (a)(5) was to protect from liability those persons who made improvements to real property. Bryant v. Don Galloway Homes, Inc., 147 N.C. App. 655, 556 S.E.2d 597 (2001).

Subdivision (5) of this section is to be interpreted in conjunction with G.S. 1-52(5) so that both statutes may be given effect. Smith v. American Radiator & Std. San. Corp., 38 N.C. App. 457, 248 S.E.2d 462 (1978), cert. denied, 296 N.C. 586, 254 S.E.2d 33 (1979), overruled on other grounds in Love v. Moore, 305 N.C. 575, 291 S.E.2d 141 (1981).

Subdivision (5) of this section provides an outside limit of six years from the bringing of an action coming within the terms thereof. Within that outside limit, G.S. 1-52(5) continues to operate, and subdivision (5) of this section does not serve to extend the time for bringing an action otherwise barred by the three-year statute. Smith v. American Radiator & Std. San. Corp., 38 N.C. App. 457, 248 S.E.2d 462 (1978), cert. denied, 296 N.C. 586, 254 S.E.2d 33 (1979), overruled on other grounds in Love v. Moore, 305 N.C. 575, 291 S.E.2d 141 (1982).

Outside Limit of Six Years. - Subdivision (5) provides an outside limit of six years after the performance of construction services. Bonestell v. North Topsail Shores Condominiums, Inc., 103 N.C. App. 219, 405 S.E.2d 222 (1991).

A special provision for latent defects in subdivision (5) states explicitly that its limited discovery rule falls within the outside restriction of the six-year period. Bonestell v. North Topsail Shores Condominiums, Inc., 103 N.C. App. 219, 405 S.E.2d 222 (1991).

Subdivision (5) was intended to apply to all actions against architects, and others therein described, where the plaintiff seeks damages resulting from the architect's faulty design or supervision, whether those damages are sought merely to correct the defect or as a result of some further injury caused by the defect. Trustees of Rowan Technical College v. J. Hyatt Hammond Assocs., 313 N.C. 230, 328 S.E.2d 274 (1985).

Subdivision (5) of this section is a statute specifically applicable to architects and others who plan, design or supervise construction, or who construct improvements to real property; therefore it and not G.S. 1-15(c) should govern a claim for breach of contract, breach of warranties, and negligence in failing to properly design and construct buildings. Trustees of Rowan Technical College v. J. Hyatt Hammond Assocs., 313 N.C. 230, 328 S.E.2d 274 (1985).

Given that the negligent construction claims that a condominium association asserted against a developer and a construction company sought recovery arising from an allegedly defective or unsafe improvement to real property, those claims came within the ambit of subdivision (a)(5)(a). Trillium Ridge Condo. Ass'n v. Trillium Links & Vill., LLC, 236 N.C. App. 478, 764 S.E.2d 203 (2014).

Meaning of "Last Act." - Where defendant substantially completed construction on house, the statute of repose began running, and subsequent repairs neither qualified as a "last act" under this section nor reset statute of repose. Monson v. Paramount Homes, Inc., 133 N.C. App. 235, 515 S.E.2d 445 (1999).

In order to constitute a last act or omission under G.S. 1-50(a)(5), the act or omission must give rise to the cause of action. Mitchell v. Mitchell's Formal Wear, Inc., 168 N.C. App. 212, 606 S.E.2d 704 (2005).

G.S. 1-50(a)(5) barred a customer's suit against a construction company to recover for injuries sustained when a bench installed by the company in a store's dressing room collapsed due to allegedly defective construction because the construction invoice indicated that the bench was completed more than six years before the customer filed the suit; while there was an indication in the record that the company performed work on the "punch list" items listed in its renovation contract with the store within six years of the customer's suit, there was no indication that any of the items related to the bench that allegedly injured the customer, and thus, the work on the punch list did not give rise to the action and did not constitute the company's last act or omission. Mitchell v. Mitchell's Formal Wear, Inc., 168 N.C. App. 212, 606 S.E.2d 704 (2005).

"Substantial Completion" Defined. - Where house could be utilized for its intended purposes upon issuance of certificate of compliance, it was "substantially completed" for purposes of this section, even though seller/builder did not complete work designated on punch list for plaintiff/purchaser until many months later. Nolan v. Paramount Homes, Inc., 135 N.C. App. 73, 518 S.E.2d 789 (1999).

Court rejected customer's contention that a store renovation project performed by a construction company was not substantially complete under G.S. 1-50(a)(5) until the city issued a permanent certificate of occupancy to the store less than six years before the customer's personal injury suit was brought because the affidavit of the company's representative established (1) that the store received a temporary certificate of occupancy more than six years before suit was brought and (2) that the permanent certificates of occupancy were not issued until the mall's renovation work of the mall in which the store was located was completed; the customer and the store failed to offer any evidence tending to show that the allegedly defective bench, which caused the customer's injuries, was incapable of being used for its intended purpose on the date that the temporary certificate was issued. Mitchell v. Mitchell's Formal Wear, Inc., 168 N.C. App. 212, 606 S.E.2d 704 (2005).

Homeowners' association's negligent construction and breach of the implied warranty of workmanship and fitness for a purpose case action was barred by the statute of repose, G.S. 1-50(a)(5), as the road could be used for its intended purpose and was substantially complete before March 2004 where following the widening and grading of the road before March 2004, the road was adequate for and was used by vehicles traveling to construct houses on lots, and the road continued to be used, without change, by lot owners and construction traffic before the road was paved in 2005. Glens of Ironduff Prop. Owners Ass'n v. Daly, 224 N.C. App. 217, 735 S.E.2d 445 (2012).

Remote Manufacturers. - If defendant were only a remote manufacturer whose materials found their way to plaintiffs' jobsite indirectly through the commerce stream, then defendant would not be a materialman and would not have furnished materials on the jobsite within the meaning of subsection (5)(b)(9), and the products liability, statute in subsection (6) would apply, rather than the real property improvement statute of repose. Forsyth Mem. Hosp. v. Armstrong World Indus., Inc., 336 N.C. 438, 444 S.E.2d 423 (1994).

Defendant was not a materialman for purposes of the statute of repose, subdivision (5)(b)(9), because plaintiff and defendant had no contract, and defendant's only intent was that of a manufacturer, to place its product into the stream of commerce, without ever intending that its product be particularly delivered to plaintiff. Forsyth Mem. Hosp. v. Armstrong World Indus., Inc., 122 N.C. App. 413, 470 S.E.2d 826 (1996).

Where Court of Appeals and Supreme Court previously decided that the statute of repose governing action was found in subsection (5), trial court properly granted defendant summary judgment where defendant produced evidence to show it was not a materialman. Forsyth Mem. Hosp. v. Armstrong World Indus., Inc., 122 N.C. App. 413, 470 S.E.2d 826 (1996).

Elements Required for Applicability of Subdivision (5) Prior to 1981 Amendment. - In order for subdivision (5) of this section, as it existed prior to the 1981 amendment, to apply, three circumstances had to exist: (1) The action had to be for recovery of damages to real or personal property; (2) The damages had to arise out of the defective and unsafe condition of an improvement to real property; and (3) The party sued must have been involved in the designing, planning or construction of the defective or unsafe improvement. Feibus & Co. v. Godley Constr. Co., 301 N.C. 294, 271 S.E.2d 385 (1980), rehearing denied, 301 N.C. 727, 274 S.E.2d 228 (1981).

Subdivision (5) of this section is not a discovery statute but runs from the later of the specific last act or omission of the defendant giving rise to the cause of action or substantial completion of the improvement. Barwick v. Celotex Corp., 736 F.2d 946 (4th Cir. 1984).

Subdivision (5) of this section is a statute of repose and not a statute of limitation. Olympic Prods. Co. v. Roof Systems, 79 N.C. App. 436, 339 S.E.2d 432, cert. denied and appeal dismissed, 316 N.C. 553, 344 S.E.2d 8 (1986).

Subdivision (5) of this section is a statute of repose which bars actions for personal injuries or property damages allegedly caused by defects in design, construction or repairs to real property unless the action is brought within six years from the completion of the work. Little v. National Servs. Indus., Inc., 79 N.C. App. 688, 340 S.E.2d 510 (1986).

Statute Runs from Date of Construction, Not Sale. - The real property improvements statute of repose designated by this section began to run the last day that defendant performed construction relating to the harm alleged and not on the day of the sale, regardless of the later completion of items on a punch list. Nolan v. Paramount Homes, Inc., 135 N.C. App. 73, 518 S.E.2d 789 (1999).

The injury contemplated by subdivision (5) of this section is obviously not the defective and unsafe condition itself; the statutory language indicates that the injury is something subsequent to and caused by the defective condition and must mean the temporal damage caused by the condition. Feibus & Co. v. Godley Constr. Co., 301 N.C. 294, 271 S.E.2d 385 (1980), rehearing denied, 301 N.C. 727, 274 S.E.2d 228 (1981).

Subdivision (5) Not Applicable to Property Severed from Realty. - In an action by an insurer for damages for defendant's alleged breach of warranty and negligent failure to properly repair a furnace transformer, where the transformer was not part of the realty at any time defendant was repairing it, but had been severed and removed from its plant by the insured and sent to defendant's plant by railroad flatcar for repair, subdivision (5) of this section clearly was not applicable. Employers Com. Union Co. of Am. v. Westinghouse Elec. Corp., 15 N.C. App. 406, 190 S.E.2d 364 (1972).

As to nonapplicability of subdivision (5) to a simple breach of contract by defective performance, prior to the 1981 amendment, see North Carolina State Ports Auth. v. Lloyd A. Fry Roofing Co., 294 N.C. 73, 240 S.E.2d 345 (1978).

Continuing Duty to Inspect and Maintain Premises. - Subsection (d) plainly excludes from subsection (a) any person who is in possession or control of property at the time that person's negligent conduct proximately causes injury or damage to the claimant; the purpose of the exclusion is to place a continuing duty "to inspect and maintain premises" on persons who, after having constructed the property, remain in possession and control. Cage v. Colonial Bldg. Co., 337 N.C. 682, 448 S.E.2d 115 (1994).

Legislature intended, in subdivision (5), to benefit only those persons who were not in possession and control of the real property at the time the defective or unsafe condition of such improvement constituted the proximate cause of the injury or damage for which the action was brought. Hence, an action by owners in possession of real property against manufacturer and contractor for negligent manufacture and installation of heating and cooling equipment on the real property is governed by G.S. 1-52(5), the three-year statute of limitations, rather than by subdivision (5) of this section. Sellers v. Friedrich Refrigerators, Inc., 283 N.C. 79, 194 S.E.2d 817 (1973), decided prior to 1981 amendment.

The legislature intended in subdivision (5) of this section to prohibit all claims and crossclaims against designers and builders filed beyond the six-year period even if these claims or crossclaims are filed by persons in possession and control. The second sentence is meant to preserve claims brought against persons in possession and control of an improvement to real property who might also have designed or built the improvement. If, of course, persons in possession and control neither designed nor built the improvement, then the first sentence would by its own terms have no application. Lamb v. Wedgewood S. Corp., 308 N.C. 419, 302 S.E.2d 868 (1983).

The purpose of the second sentence of subdivision (5) of this section is to preserve these kinds of claims by exempting them from the limiting period, since if those in possession and control also happen to have designed or built the improvement, a not uncommon occurrence, then claims against them brought beyond the limiting period would be barred were it not for the exclusionary sentence. Lamb v. Wedgewood S. Corp., 308 N.C. 419, 302 S.E.2d 868 (1983).

The exception in paragraph (5)d, for owners and tenants is based on a continued duty to inspect and maintain the premises. Gillespie v. Coffey, 86 N.C. App. 97, 356 S.E.2d 376 (1987).

The exception found in subdivision (5)d is based on the continued duty of owners and tenants to inspect and maintain the premises. The exception indicates that the limited period of liability was not intended to apply to those in actual possession or control of the land if they knew or had reason to know of the defect. Wilson v. McLeod Oil Co., 327 N.C. 491, 398 S.E.2d 586 (1990), rehearing denied, 328 N.C. 336, 402 S.E.2d 844 (1991).

Construction with Other Sections. - The terms of G.S. 1-52(16) apply "unless otherwise provided by statute"; therefore, since subsection (5) is the statute of repose governing actions against a materialman arising out of improvement to real property, it applies to the exclusion of G.S. 1-52(16). Forsyth Mem. Hosp. v. Armstrong World Indus., Inc., 336 N.C. 438, 444 S.E.2d 423 (1994).

Section Held Inapplicable to Tenant's Corporate Successor. - The six-year statute of limitations of this section did not apply to an action for fraud arising out of the collapse of the floor of a building, where the corporate tenant of the building merged into the successor corporate plaintiff after the building collapsed, since the plaintiff succeeded to the rights of the corporate tenant and thus was in actual possession and control of the building as tenant at the time of the injury. Feibus & Co. v. Godley Constr. Co., 301 N.C. 294, 271 S.E.2d 385 (1980), rehearing denied, 301 N.C. 727, 274 S.E.2d 228 (1981), decided prior to 1981 amendment.

Action Against Architect for Negligence Arising Out of Construction Project. - The effect of G.S. 1-52(5) and former G.S. 1-15(b) was that the date of the accrual of a cause of action against an architect for negligence arising out of a construction project was deemed to be the date of discovery of the defective or unsafe condition of a structure, and that the action had to be brought within three years thereafter, and subdivision (5) of this section set an outside limit on the right to sue, requiring that the action be brought within six years after construction was completed, except that it was not applicable "to any person in actual possession and control as owner, tenant or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury for which it is proposed to bring an action." Quail Hollow E. Condominium Ass'n v. Donald J. Scholz Co., 47 N.C. App. 518, 268 S.E.2d 12, cert. denied, 301 N.C. 527, 273 S.E.2d 454 (1980), decided prior to 1981 amendment.

Subsequent purchaser of house can maintain action against original builder for negligent construction of the house, and such an action is governed by the time limitations set forth in subdivision (5) of this section. Evans v. Mitchell, 77 N.C. App. 598, 335 S.E.2d 758 (1985), cert. denied, 316 N.C. 376, 342 S.E.2d 893 (1986).

Claim Against Third Party for Indemnification or Contribution. - The accrual date of original plaintiff's claim determines which version of the statute of repose is applicable to the defendant's claim for indemnification or contribution against a third party. New Bern Assocs. v. Celotex Corp., 87 N.C. App. 65, 359 S.E.2d 481, cert. denied, 321 N.C. 297, 362 S.E.2d 782 (1987).

Chairlift as Improvement to Real Property. - As between owner and company which redesigned and repaired chairlift for recreational park, the chairlift would be treated as an "improvement to real property" and owner's third-party action against the company for negligence would be barred by this section. Little v. National Servs. Indus., Inc., 79 N.C. App. 688, 340 S.E.2d 510 (1986).

Installation of gasoline storage tanks was not an improvement to real property within the meaning of subdivision (5), where the intention of the contracting parties at the time of installation was that the tanks would remain personal property. Wilson v. McLeod Oil Co., 327 N.C. 491, 398 S.E.2d 586 (1990), rehearing denied, 328 N.C. 336, 402 S.E.2d 844 (1991).

Shelf Angles Installed by Subcontractor. - Subcontractor was not entitled to summary judgment on its statute of limitations defense to negligence and breach of warranty claims as the condition of shelf angles the general contractor complained of was likely latent and difficult to detect once brick veneer was installed, and there was conflicting testimony as to whether the subcontractor was directed to omit some shelf angles. In re New Bern Riverfront Dev., LLC, 515 B.R. 268 (Bankr. E.D.N.C. 2014).

Latent Disease Exception. - Because a latent disease exception existed to the North Carolina improvement-to-real-property statute of repose, G.S. 1-50, a manufacturer in an asbestos-exposure case was not entitled to summary judgment on this basis. In re Asbestos Litig.: McGhee, - A.3d - (Del. Super. Ct. May 16, 2012).

Equitable Estoppel. - Trial court erred by granting summary judgment in favor of a construction company because the record disclosed the existence of a genuine issue of material fact concerning the extent to which the company was estopped from asserting the statute of limitations or the statute of repose in opposition to a condominium's negligent construction claim; genuine issues of material fact existed as to whether or not a report put the association on notice of the existence of the construction-related defects. Trillium Ridge Condo. Ass'n v. Trillium Links & Vill., LLC, 236 N.C. App. 478, 764 S.E.2d 203 (2014).

Developer was not equitably estopped from asserting the statute of limitations or statute of repose in opposition to a condominium association's negligent construction claims because the association had the same information available to the developer; thus, the developer did not conceal any information, and the record was totally devoid of any information tending to show that the association was induced to delay filing the action by the developer's misrepresentations. Trillium Ridge Condo. Ass'n v. Trillium Links & Vill., LLC, 236 N.C. App. 478, 764 S.E.2d 203 (2014).

Statute of Repose No Defense. - Under subsection (5), no statute of repose may be asserted as a defense to a claim of willful and wanton misconduct. Forsyth Mem. Hosp. v. Armstrong World Indus., Inc., 336 N.C. 438, 444 S.E.2d 423 (1994).

Statute of Repose Not Tolled. - Homeowners' association's claim that under the North Carolina Planned Community Act, specifically G.S. 47F-3-111, the statute of repose of G.S. 1-50(a)(5)(a) did not apply to its claims for breach of the implied warranty of workmanship and fitness for a purpose and negligent construction was rejected as by its plain language, G.S. 47F-3-111 tolled the statute of limitation, not the statute of repose. Glens of Ironduff Prop. Owners Ass'n v. Daly, 224 N.C. App. 217, 735 S.E.2d 445 (2012).

By its plain language, the North Carolina Planned Community Act, specifically G.S. 47F-3-111, tolls only the statute of limitation; it does not toll the statute of repose, G.S. 1-50(a)(5)(a). Glens of Ironduff Prop. Owners Ass'n v. Daly, 224 N.C. App. 217, 735 S.E.2d 445 (2012).

General contractor's claims against subcontractor relating to negligence and breach of express warranty were barred by statute of limitations and discovery rule because sequencing problems should have been known to general contractor more than three years before it filed its complaint. New Bern Riverfront Dev., LLC v. Weaver Cooke Constr., LLC (In re New Bern Riverfront Dev., LLC), 515 B.R. 256 (Bankr. E.D.N.C. 2014).

General contractor's claims against subcontractor alleging negligence and breach of express warranty were barred by G.S. 1-50 and 1-52 because alleged defects in HVAC systems the subcontractor installed in condominiums the general contractor built were open and obvious conditions within the mechanical closet of each unit and should have been known to the general contractor more than three years before it filed its complaint; however, the subcontractor was not entitled to summary judgment on a claim the general contractor filed under an indemnity clause in the parties' contract, to the extent it was wholly responsible for water damage that occurred to floors in each unit as a result of HVAC systems it installed. New Bern Riverfront Dev., LLC v. Weaver Cooke Constr., LLC (In re New Bern Riverfront Dev., LLC ), 516 B.R. 800 (Bankr. E.D.N.C. 2014).

Waiver of Statute of Repose. - North Carolina's six-year statute of repose did not bar homeowners' attempt to enforce the twenty-year warranty provided by a manufacturer for its product because the manufacturer waived the protections provided the statute by knowingly and freely contracting for a warranty term that exceeded the repose period. Christie v. Hartley Constr., Inc., 367 N.C. 286, 753 S.E.2d 657 (Dec. 19, 2014).

Suit Against Builder Barred. - Suit against builder for faulty construction of house built in 1972 under subdivision (5) of this section as it read from 1963 through 1981 was barred in 1978. Evans v. Mitchell, 74 N.C. App. 730, 329 S.E.2d 681, remanded for reconsideration in light of Oates v. Jag, Inc., 314 N.C. 276, 333 S.E.2d 222, at, 314 N.C. 531, 335 S.E.2d 315 (1985).

Action Barred. - Action instituted on November 6, 1984, arising out of a fire which occurred on March 28, 1983, at the plaintiff's plant, allegedly caused by the explosion of a Sylvania 100-watt Metalarc lamp manufactured by one defendant, distributed by another, and installed as part of the plaintiff's plant by third defendant, electrical subcontractor for fourth defendant, the general contractor, was barred by this section where construction of the plant was completed on or before April 30, 1978. Cellu Prods. Co. v. G.T.E. Prods. Corp., 81 N.C. App. 474, 344 S.E.2d 566 (1986).

Plaintiff was barred by subdivision (5) from bringing action against city seeking damages for injuries suffered due to a fall at a restaurant, based on plaintiff's claim that remodeling of the restaurant entryway in May, 1979, did not meet the requirements of the North Carolina State Building Code, where the last act of defendant city occurred in May, 1979, when the building inspector approved the remodeling and concluded that the alterations to the restaurant complied with the Building Code. Gillespie v. Coffey, 86 N.C. App. 97, 356 S.E.2d 376 (1987).

Where plaintiffs, in their complaint, never alleged wanton negligence or made any assertions of intentional wrongdoing, and plaintiffs' claim was filed more than six years after defendants completed improvements to the real property in question, subdivision (5) of this section barred the action. Duncan v. Ammons Constr. Co., 87 N.C. App. 597, 361 S.E.2d 906 (1987).

Because defe