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).

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).

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).

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).

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).

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).

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).

CASE NOTES

• I. In General.
• II. Malpractice.

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.

CASE NOTES

• I. In General.
• II. Minors.
• III. Insanity.
• IV. Incompetency.
• V. Malpractice.
• VI. Adverse Possession.

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).

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).

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).

CASE NOTES

• I. In General.
• II. Causes of Action Arising Outside State.

CASE NOTES

• I. In General.
• II. Claims in Favor of Estate.
• III. Claims Against Estate.
• IV. Filing and Admission of Claim.

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).

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.

CASE NOTES

• I. In General.
• II. Acknowledgment or New Promise.
• III. Effect of Partial Payment.
• IV. Effect of Request Not to Sue.

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).

CASE NOTES

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

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).

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).

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).

CASE NOTES

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

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).

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.

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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.

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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.

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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.

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A. IN GENERAL.

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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.

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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.

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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).

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).

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.

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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.

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A. IN GENERAL.

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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.

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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.

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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.

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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.

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.

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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