I.In General

Editor’s Note. —

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

Section Is Constitutional. —

Square D. Co. v. C. J. Kern Contractors, 70 N.C. App. 30, 318 S.E.2d 527, 1984 N.C. App. LEXIS 3609 (1984), aff'd, 314 N.C. 423 , 334 S.E.2d 63, 1985 N.C. LEXIS 1883 (1985).

This statute, as applied in legal malpractice case, does not violate the federal constitution or the state constitution. Garrett v. Winfree, 120 N.C. App. 689, 463 S.E.2d 411, 1995 N.C. App. LEXIS 904 (1995).

Constitutionality of Subsection (c). —

Even if subsection (c) of this section may be vague as to certain classes of occupations because it fails to define “malpractice” or “professional services,” it was not vague as to defendant doctor and hospital. Where a term such as “malpractice” or “professional service” has been used over such a lengthy period of time that its usage has given the term well-defined contours, such a term will not be found inadequate. Roberts v. Durham County Hosp. Corp., 56 N.C. App. 533, 289 S.E.2d 875, 1982 N.C. App. LEXIS 2445 (1982), aff'd, 307 N.C. 465 , 298 S.E.2d 384, 1983 N.C. LEXIS 1080 (1983).

Subsection (c) of this section does not violate the federal constitutional guarantees of equal protection and the North Carolina Constitution’s equal protection provision prohibiting exclusive emoluments contained in N.C. Const., Art. 1, § 32, because it is rationally related to maintaining sufficient medical treatment in this State. Roberts v. Durham County Hosp. Corp., 56 N.C. App. 533, 289 S.E.2d 875, 1982 N.C. App. LEXIS 2445 (1982), aff'd, 307 N.C. 465 , 298 S.E.2d 384, 1983 N.C. LEXIS 1080 (1983).

Subsection (c) of this section is not unconstitutional. Walker v. Santos, 70 N.C. App. 623, 320 S.E.2d 407, 1984 N.C. App. LEXIS 3732 (1984).

G.S. 1-50(5) and this section are not unconstitutional as being violative of the open courts provision of the State Constitution and the equal protection clauses of the state and federal Constitutions. Square D Co. v. C.J. Kern Contractors, 314 N.C. 423 , 334 S.E.2d 63, 1985 N.C. LEXIS 1883 (1985).

Retroactivity of Section. —

This section did not affect litigation pending when it was ratified. Nationwide Mut. Ins. Co. v. Weeks-Allen Motor Co., 18 N.C. App. 689, 198 S.E.2d 88, 1973 N.C. App. LEXIS 1985 (1973).

The 1971 amendment, adding former subsection (b) of this section, and the 1975 amendment, adding subsection (c) of this section, did not apply retroactively to revive actions already barred at common law, nor affect pending litigation. They would, however, apply to those cases which had not yet accrued, or which accrued within three years immediately preceding the effective date of the amendments. Ballenger v. Crowell, 38 N.C. App. 50, 247 S.E.2d 287, 1978 N.C. App. LEXIS 2084 (1978).

This section applies to actions wherein formal pleadings are required to be filed and not to proceedings in the nature of a controversy without action upon an agreed statement of facts for the distribution of funds arising from a foreclosure sale. In re Gibbs, 205 N.C. 312 , 171 S.E. 55, 1933 N.C. LEXIS 542 (1933).

“Special Cases” Where Different Limitation Prescribed. —

The only “special case” in respect to torts “where a different limitation is prescribed by statute” is contained in the three-year statute, G.S. 1-52 . This “different limitation” relates only to actions grounded on allegations of fraud or mistake. Lewis v. Shaver, 236 N.C. 510 , 73 S.E.2d 320, 1952 N.C. LEXIS 599 (1952).

Section Not Statute of Presumptions. —

Now we have no statute of presumptions. This section prescribes a statute of limitations only. George W. Helm Co. v. Griffin, 112 N.C. 356 , 16 S.E. 1023, 1893 N.C. LEXIS 218 (1893).

The purpose of a statute of limitations is to afford security against stale demands, not to deprive anyone of his just rights by lapse of time. Congleton v. City of Asheboro, 8 N.C. App. 571, 174 S.E.2d 870, 1970 N.C. App. LEXIS 1616 (1970).

Statutes of limitations are inflexible and unyielding. They operate inexorably without reference to the merits of plaintiff’s cause of action. They are statutes of repose, intended to require that litigation be initiated within the prescribed time or not at all. Congleton v. City of Asheboro, 8 N.C. App. 571, 174 S.E.2d 870, 1970 N.C. App. LEXIS 1616 (1970).

Vested Right to Rely on Statute. —

The statute of limitations operates to vest a defendant with the right to rely on the statute of limitations as a defense. Congleton v. City of Asheboro, 8 N.C. App. 571, 174 S.E.2d 870 (1970). In accord with the main volume. See Callahan v. Rodgers, 89 N.C. App. 250, 365 S.E.2d 717, 1988 N.C. App. LEXIS 274 (1988).

The court has no discretion when considering whether a claim is barred by the statute of limitations. Congleton v. City of Asheboro, 8 N.C. App. 571, 174 S.E.2d 870 (1970). In accord with the main volume. See Callahan v. Rodgers, 89 N.C. App. 250, 365 S.E.2d 717, 1988 N.C. App. LEXIS 274 (1988).

Necessity of Pleading Statute. —

A statute of limitations is not available as a defense or bar to an action unless it is pleaded, nor can it be raised, ordinarily, by motion to dismiss. Iredell County v. Crawford, 262 N.C. 720 , 138 S.E.2d 539, 1964 N.C. LEXIS 739 (1964).

Unless a statute of limitations is annexed to the cause of action itself, the bar of limitation must be affirmatively pleaded in order to be available as a defense. Overton v. Overton, 259 N.C. 31 , 129 S.E.2d 593, 1963 N.C. LEXIS 480 (1963).

As to necessity of pleading the statute of limitations, see also Pegram v. Stoltz, 67 N.C. 144 , 1872 N.C. LEXIS 199 (1872); Guthrie v. Bacon, 107 N.C. 337 , 12 S.E. 204, 1890 N.C. LEXIS 66 (1890); Randolph v. Randolph, 107 N.C. 506 , 12 S.E. 374, 1890 N.C. LEXIS 100 (1890); Albertson v. Terry, 109 N.C. 8 , 13 S.E. 713, 1891 N.C. LEXIS 151 (1891); King v. Powell, 127 N.C. 10 , 37 S.E. 62, 1900 N.C. LEXIS 4 (1900); Pipes v. North Carolina Mica Mineral & Lumber Co., 132 N.C. 612 , 44 S.E. 114, 1903 N.C. LEXIS 330 (1903); Brannock v. Fletcher, 271 N.C. 65 , 155 S.E.2d 532, 1967 N.C. LEXIS 1158 (1967).

For cases holding that the statute of limitations must be raised in the answer, see Green v. North Carolina R.R., 73 N.C. 524 , 1875 N.C. LEXIS 106 (1875); Kahnweiler v. Anderson, 78 N.C. 133 , 1878 N.C. LEXIS 186 (1878); Long v. Bank of Yanceyville, 81 N.C. 41 , 1879 N.C. LEXIS 139 (1879); Bacon v. Berry, 85 N.C. 124 , 1881 N.C. LEXIS 219 (1881); King v. Powell, 127 N.C. 10 , 37 S.E. 62, 1900 N.C. LEXIS 4 (1900); Oldham v. Rieger, 145 N.C. 254 , 58 S.E. 1091, 1907 N.C. LEXIS 285 (1907); Moody v. Wike, 170 N.C. 541 , 87 S.E. 350, 1915 N.C. LEXIS 4 50 (1915); Logan v. Griffith, 205 N.C. 580 , 172 S.E. 348, 1934 N.C. LEXIS 15 (1934); Lewis v. Shaver, 236 N.C. 510 , 73 S.E.2d 320, 1952 N.C. LEXIS 599 (1952); Reid v. Holden, 242 N.C. 408 , 88 S.E.2d 125, 1955 N.C. LEXIS 599 (1955); Stamey v. Rutherfordton Elec. Membership Corp., 249 N.C. 90 , 105 S.E.2d 282, 1958 N.C. LEXIS 422 (1958); Elliott v. Goss, 250 N.C. 185 , 108 S.E.2d 475, 1959 N.C. LEXIS 643 (1959); Iredell County v. Crawford, 262 N.C. 720 , 138 S.E.2d 539, 1964 N.C. LEXIS 739 (1964).

Burden of Proof on Plaintiff When Statute Pleaded. —

Where the statute of limitations has been pleaded, the burden is on plaintiff to show that his cause of action against defendant accrued within three years prior to the institution of the suit. State v. Cessna Aircraft Corp., 9 N.C. App. 557, 176 S.E.2d 796, 1970 N.C. App. LEXIS 1404 (1970).

In general a cause of action accrues as soon as the right to institute and maintain a suit arises. Thurston Motor Lines v. General Motors Corp., 258 N.C. 323 , 128 S.E.2d 413, 1962 N.C. LEXIS 683 (1962); North Carolina State Ports Auth. v. Lloyd A. Fry Roofing Co., 32 N.C. App. 400, 232 S.E.2d 846, 1977 N.C. App. LEXIS 1961 (1977), aff'd, 294 N.C. 73 , 240 S.E.2d 345, 1978 N.C. LEXIS 1187 (1978); Penley v. Penley, 314 N.C. 1 , 332 S.E.2d 51, 1985 N.C. LEXIS 1706 (1985).

The statute of limitations cannot begin to run against an aggrieved party who under no circumstances could have maintained an action at the time the wrongful act was committed until that aggrieved party becomes entitled to maintain an action. Williams v. GMC, 393 F. Supp. 387, 1975 U.S. Dist. LEXIS 12550 (M.D.N.C. 1975), aff'd, 538 F.2d 327, 1976 U.S. App. LEXIS 7805 (4th Cir. 1976); Raftery v. Wm. C. Vick Constr. Co., 291 N.C. 180 , 230 S.E.2d 405, 1976 N.C. LEXIS 966 (1976).

Generally, a cause of action accrues to an injured party so as to start the running of the statute of limitations when he is at liberty to sue, being at that time under no disability. Raftery v. Wm. C. Vick Constr. Co., 291 N.C. 180 , 230 S.E.2d 405, 1976 N.C. LEXIS 966 (1976).

A cause of action generally accrues and the statute of limitations begins to run whenever a party becomes liable to an action, if at such time the demanding party is under no disability. In no event can a statute of limitations begin to run until plaintiff is entitled to institute an action. City of Reidsville v. Burton, 269 N.C. 206 , 152 S.E.2d 147, 1967 N.C. LEXIS 1045 (1967).

In no event can a statute of limitations begin to run until plaintiff is entitled to institute an action. Ordinarily, the period of the statute of limitations begins to run when the plaintiff’s right to maintain an action for the wrong alleged accrues. Bolick v. American Barmag Corp., 54 N.C. App. 589, 284 S.E.2d 188, 1981 N.C. App. LEXIS 2918 (1981), modified, 306 N.C. 364 , 293 S.E.2d 415, 1982 N.C. LEXIS 1460 (1982).

An action based on personal injury must be commenced within three years of the date on which the claim accrued. For purposes of personal injury, the claim is deemed to have accrued when the injury became or should have become apparent to the claimant. Everhart v. Sowers, 63 N.C. App. 747, 306 S.E.2d 472, 1983 N.C. App. LEXIS 3175 (1983).

Plaintiff’s complaint accrued as soon as the right to institute and maintain suit arose which was at the time of the 1994 conveyance between county and nonprofit hospital where the plaintiff sought (1) a declaratory judgment as to the constitutionality of legislation governing conveyances, (2) a declaratory judgment upon the validity of a conveyance between two other parties, and (3) to enjoin a conveyance between two other parties. Hamlet HMA, Inc. v. Richmond County, 138 N.C. App. 415, 531 S.E.2d 494, 2000 N.C. App. LEXIS 636 (2000).

Imprisonment Does Not Toll Statute. —

Imprisonment is not a disability that tolls the running of the statute of limitations. Small v. Britt, 64 N.C. App. 533, 307 S.E.2d 771, 1983 N.C. App. LEXIS 3315 (1983).

The cause of action ordinarily accrues when the wrong is complete, even though the injured party did not then know the wrong had been committed. Raftery v. Wm. C. Vick Constr. Co., 291 N.C. 180 , 230 S.E.2d 405, 1976 N.C. LEXIS 966 (1976); Bolick v. American Barmag Corp., 54 N.C. App. 589, 284 S.E.2d 188, 1981 N.C. App. LEXIS 2918 (1981), modified, 306 N.C. 364 , 293 S.E.2d 415, 1982 N.C. LEXIS 1460 (1982).

Exception for Fraud or Mistake. —

A cause of action accrues and the statute of limitations begins to run whenever a party becomes liable to an action, if at such time the demanding party is under no disability. This rule is subject to certain exceptions, such as torts grounded on fraud or mistake. Matthieu v. Piedmont Natural Gas Co., 269 N.C. 212 , 152 S.E.2d 336, 1967 N.C. LEXIS 1046 (1967).

Notice of Cause of Action. —

Trial court erred by dismissing plaintiff’s action on the grounds that it was barred by the statute of limitations where plaintiff argued that because of action accrued on the last date he was treated by defendant but defendant argued that plaintiff’s cause of action accrued when the other doctor told plaintiff that defendant “should be hung up by the balls”, and whether this statement was sufficient to charge plaintiff with notice that he had a cause of action was not so clear that it could be decided as a matter of law. Hatem v. Bryan, 117 N.C. App. 722, 453 S.E.2d 199, 1995 N.C. App. LEXIS 66 (1995).

Statute of limitations begins to run from discovery of fraud or from time it should have been discovered in the exercise of reasonable diligence. Hyde v. Taylor, 70 N.C. App. 523, 320 S.E.2d 904, 1984 N.C. App. LEXIS 3722 (1984).

If there is no claim or cause of action, the statute will not run. This principle is recognized by this section and there is nothing in G.S. 1-49 which conflicts with it. Miller v. Shoaf, 110 N.C. 319 , 14 S.E. 800, 1892 N.C. LEXIS 52 (1892).

When the statute starts to run, it continues until stopped by appropriate judicial process. Speas v. Ford, 253 N.C. 770 , 117 S.E.2d 784, 1961 N.C. LEXIS 447 (1961); B-W Acceptance Corp. v. Spencer, 268 N.C. 1 , 149 S.E.2d 570, 1966 N.C. LEXIS 1122 (1966).

Running of Statute Not Postponed by Mere Lack of Knowledge. —

Mere lack of knowledge of the facts constituting a cause of action in tort, in the absence of fraudulent concealment of facts by the tort-feasor, does not postpone the running of the statute. Lewis v. Shaver, 236 N.C. 510 , 73 S.E.2d 320, 1952 N.C. LEXIS 599 (1952).

When Statute Begins to Run Against Remainderman. —

Ordinarily the statute of limitations does not begin to run against the rights of a remainderman to maintain an action to recover possession of land until after the expiration of the life estate. However, a remainderman is not required to wait until after the expiration of the life estate to bring an action to quiet title or otherwise protect his interest. Walston v. W.H. Applewhite & Co., 237 N.C. 419 , 75 S.E.2d 138, 1953 N.C. LEXIS 645 (1953).

Continuing or Recurring Damages. —

When the basis of the cause of action produces continuing or recurring damages, the cause of action accrues at the time damages are first sustained, the subsequent damages being merely in aggravation of the original damages and not being essential to the cause of action. Matthieu v. Piedmont Natural Gas Co., 269 N.C. 212 , 152 S.E.2d 336, 1967 N.C. LEXIS 1046 (1967).

Accrual of An Action Against An Ordinance and Enabling Statute. —

Employer’s cause of action for a declaratory judgment counterclaim accrued when the employer was sued under the employment provisions of a county discrimination ordinance and not when the enabling statute for the ordinance was passed; therefore, the employer’s declaratory judgment counterclaim was not time-barred as the alleged wrong constituted a continuing violation and did not occur until the statute was enforced or applied. Williams v. Blue Cross Blue Shield, 357 N.C. 170 , 581 S.E.2d 415, 2003 N.C. LEXIS 595 (2003).

Accrual of Cause of Action for Negligent Injury. —

Unless tolled by disability or the fraudulent concealment of the cause of action, a cause of action for negligent injury ordinarily accrues when the wrong giving rise to the right to sue is committed, even though the damages at that time are nominal, without regard to the time when consequential injuries are discovered or should have been discovered. Shearin v. Lloyd, 246 N.C. 363 , 98 S.E.2d 508, 1957 N.C. LEXIS 464 (1957); Ford Motor Credit Co. v. Minges, 473 F.2d 918, 1973 U.S. App. LEXIS 11769 (4th Cir. 1973).

Promissory Note Payable on Demand. —

The statute of limitations on an action on a promissory note payable on demand begins to run from the date of the execution of the note. Wells v. Barefoot, 55 N.C. App. 562, 286 S.E.2d 625, 1982 N.C. App. LEXIS 2240 (1982).

Effect of Partial Payment on Promissory Note. —

The limitations period on an action on a promissory note will begin anew when a partial payment is made by the debtor before the limitations period has expired, nothing else appearing. Wells v. Barefoot, 55 N.C. App. 562, 286 S.E.2d 625, 1982 N.C. App. LEXIS 2240 (1982).

Agreement to Make Refund. —

Where one pays another upon a debt which is uncertain in amount and takes an acknowledgment to a refund if overpaid, the statute does not begin to run against the agreement to refund until after the amount of overpayment is ascertained. Falls v. McKnight, 14 N.C. 421 , 1832 N.C. LEXIS 68 (1832).

Where a party dies pending action, the statute of limitations begins to run from the date of the appointment of the administrator, and the plea of the statute must be set up in the answer. Lynn v. Lowe, 88 N.C. 478 , 1883 N.C. LEXIS 109 (1883).

Section Not Applicable to Negligent Advice Rendered by Insurance Agent. —

A cause of action based on negligent advice rendered by an insurance agent does not involve professional malpractice, and the appropriate statute of limitations is the three-year period of G.S. 1-52(5) , not this section. Pierson v. Buyher, 330 N.C. 182 , 409 S.E.2d 903, 1991 N.C. LEXIS 733 (1991).

Insurance agents who procured an insurance policy for a contractor were not providers of professional services for purposes of the extended statute of limitations under G.S. 1-15(c) . Therefore, the statute of limitations under G.S. 1-52 was applicable to the contractor’s claims against the insurance agents for general negligence and breach of contract in failing to procure needed insurance coverage for the contractor’s operations. Scott & Jones, Inc. v. Carlton Ins. Agency, Inc., 196 N.C. App. 290, 677 S.E.2d 848, 2009 N.C. App. LEXIS 368 (2009).

Defendant administrator, assuming to act as plaintiff’s agent in collection and application of rents, cannot plead the statute of limitations unless there was a demand and a refusal, and then only from the time thereof. Shuffler v. Turner, 111 N.C. 297 , 16 S.E. 417, 1892 N.C. LEXIS 171 (1892).

Cause of action against the guarantor on a note accrues upon the maturity of the note and the failure of the maker to pay same according to its tenor. Hall v. Hood, 208 N.C. 59 , 179 S.E. 27, 1935 N.C. LEXIS 315 (1935).

Accrual of Subrogation Action. —

As plaintiff insured was not entitled to institute its subrogation action against defendant insurer until the Industrial Commission’s final determination, its subrogation action against defendant accrued on that date. Nationwide Mut. Ins. Co. v. American Mut. Liab. Ins. Co., 89 N.C. App. 299, 365 S.E.2d 677, 1988 N.C. App. LEXIS 291 (1988).

Overflowing Sewage. —

Where a municipal corporation constructed a sewer system which emptied quantities of raw sewage into a stream, which matter was periodically washed upon contiguous lands by freshets, in an action against the city by the owner of the land all damages to the land based on trespass occurring prior to three years before the institution of the action were barred by the three-year statute of limitations under this section and G.S. 1-52 . Lightner v. City of Raleigh, 206 N.C. 496 , 174 S.E. 272, 1934 N.C. LEXIS 227 (1934).

Easement Encroachment. —

Statute of limitations for a lawsuit based upon encroachment on an easement is six years, and the statute of limitations for a claim based on injury to an easement runs from the time that the claim accrues, even if a plaintiff is not aware of the injury at that time. Therefore, a claim was time barred when it was not filed within 6 years of the completion of a house that encroached on an easement; completion occurred at the latest when a certificate of occupancy was issued. Duke Energy Carolinas, LLC v. Gray, 237 N.C. App. 420, 766 S.E.2d 354, 2014 N.C. App. LEXIS 1243 (2014), rev'd, 369 N.C. 1 , 789 S.E.2d 445, 2016 N.C. LEXIS 652 (2016).

Where plaintiff alleged that a truck-tractor was equipped with a faulty and dangerous carburetor, likely to cause said truck-tractor to be “ignited with fire,” when sold and delivered to plaintiff, and that defendants knew or by the exercise of due care should have known of such defective condition and failed to warn plaintiff thereof, plaintiff suffered injury and his rights were invaded immediately upon the sale and delivery of the truck-tractor to plaintiff, and a cause of action in favor of plaintiff and against defendants then accrued for which plaintiff was entitled to recover nominal damages at least. Thurston Motor Lines v. General Motors Corp., 258 N.C. 323 , 128 S.E.2d 413, 1962 N.C. LEXIS 683 (1962).

In action to recover damages from dust and dirt injected into house by gas furnace and air conditioner purchased from defendant, where plaintiffs’ allegations were to the effect that the defect was obvious from the beginning, that complaints were made to defendant, and that defendant’s employees reported no defect could be found in the system but that they would continue to look, it was held that plaintiffs’ cause of action accrued upon the occurrence of the first damage, and plaintiffs were not entitled to rely upon estoppel of defendant to plead the statute, since defendant consistently took the position that no defect existed and never made any representation that would have led plaintiffs to refrain from suing. Matthieu v. Piedmont Natural Gas Co., 269 N.C. 212 , 152 S.E.2d 336, 1967 N.C. LEXIS 1046 (1967).

When personal services are rendered with understanding that compensation is to be made in will of recipient, payment therefor does not become due until death, and the statutes of limitation do not begin to run until that time. Stewart v. Wyrick, 228 N.C. 429 , 45 S.E.2d 764, 1947 N.C. LEXIS 348 (1947).

As to the effect of former subsection (b), relating to accrual of causes of action in cases involving bodily injury or a defect in or damage to property, where the injury was latent, see Quail Hollow E. Condominium Ass'n v. Donald J. Scholz Co., 47 N.C. App. 518, 268 S.E.2d 12, 1980 N.C. App. LEXIS 3166 (1980).

Former subsection (b) of this section, providing that except where otherwise provided, a cause of action, other than one for wrongful death or one for malpractice, having as an essential element bodily injury to the person or a defect in or damage to property which originated under circumstances making the injury, defect or damage not readily apparent to the claimant at the time of its origin, would be deemed to have accrued at the time the injury was discovered by the claimant, or ought reasonably to have been discovered by him, provided that in such cases the period shall not exceed 10 years from the last act of the defendant giving rise to the claim for relief, was not applicable to claims arising out of a disease. Wilder v. Amatex Corp., 314 N.C. 550 , 336 S.E.2d 66, 1985 N.C. LEXIS 2083 (1985).

Former subsection (b) had no application to claims arising out of disease. Leonard v. Johns-Manville Sales Corp., 316 N.C. 84 , 340 S.E.2d 338, 1986 N.C. LEXIS 1915 (1986).

Actions for fraud were not subject to the 10-year limitation of former subsection (b) of this section, since G.S. 1-52(9) is a statute that “otherwise provides” as to the time of accrual of an action for fraud, and under G.S. 1-52(9) the three-year limitation for an action for fraud accrues at the time of discovery, regardless of the length of time between the fraudulent act or mistake and discovery of it. Feibus Co. v. Godley Constr. Co., 301 N.C. 294 , 271 S.E.2d 385, 1980 N.C. LEXIS 1175 (1980).

A suit does not involve an “injury to the person or rights of another” until plaintiff is hurt. Stell v. Firestone Tire & Rubber Co., 306 F. Supp. 17, 1969 U.S. Dist. LEXIS 8756 (W.D.N.C. 1969).

Liability of a manufacturer in a wrongful death case is not limited to 10 years. Williams v. GMC, 393 F. Supp. 387, 1975 U.S. Dist. LEXIS 12550 (M.D.N.C. 1975), aff'd, 538 F.2d 327, 1976 U.S. App. LEXIS 7805 (4th Cir. 1976).

Application of Section to Automobile Accident Cases. —

The statute of limitations for tort claims had no impact on the notification provisions of G.S. 20-279.21(b)(4), and the defendants, therefore, were not required to notify the plaintiff/insurer within that SOL. Liberty Mut. Ins. Co. v. Pennington, 141 N.C. App. 495, 541 S.E.2d 503, 2000 N.C. App. LEXIS 1441 (2000), aff'd, 356 N.C. 571 , 573 S.E.2d 118, 2002 N.C. LEXIS 1252 (2002).

Statute of Repose Not Tolled by Incompetency. —

Statute of repose for a guardian’s cause of action for professional malpractice was not tolled by incompetency as: (1) the claim that incompetency tolled the statute of repose had been rejected in Livingston v. Adams Kleemeier Hagan Hannah & Fouts , 163 N.C. App. 397, 594 S.E.2d 44 (2004); (2) there was no reason to overrule Livingston ; and (3) there was a well-established judicial policy in North Carolina that decisions of the North Carolina Supreme Court were presumed to operate retroactively, and Livingston was applied retroactively. Wells v. Cumberland County Hosp. Sys., 181 N.C. App. 590, 640 S.E.2d 400, 2007 N.C. App. LEXIS 255 (2007).

Claim Barred by Statute. —

There was no continuing duty on attorney to correct will; therefore, the attorney’s last act giving rise to the claim was his supervision of the will’s execution, since this was more than four years preceding the filing of the complaint, the four-year statute of repose barred the claim. Hargett v. Holland, 337 N.C. 651 , 447 S.E.2d 784, 1994 N.C. LEXIS 495 (1994).

Dismissal Upheld. —

The trial court properly dismissed action brought by doctors against accountants who had been engaged to advise them on business opportunities under G.S. 1A-1 , Rule 12(b)(6), as doctors’ complaint against accountants disclosed that its claims were either time-barred or lacked facts sufficient to state a claim for relief. Harrold v. Dowd, 149 N.C. App. 777, 561 S.E.2d 914, 2002 N.C. App. LEXIS 309 (2002).

Partner’s breach of fiduciary duty claim was properly dismissed under G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6), because the last act upon which the claim was based occurred more than six years before an attorney was sued; whether the three-year statute of limitations or the four-year statute of repose applied was immaterial as both had long since expired. Carlisle v. Keith, 169 N.C. App. 674, 614 S.E.2d 542, 2005 N.C. App. LEXIS 800 (2005).

Trial court properly granted the contractors summary judgment on the city’s negligence, fraud, negligent misrepresentation, breach of contract, breach of warranty, and professional malpractice claims arising from the rehabilitation and repair of the city’s sanitary sewer collection system where the city filed the suit more than four years after all the claims arose, and since the operation and maintenance of a sewer system was a proprietary function, not governmental, the doctrine of nullum tempus occurrit regi did not apply. Town of Littleton v. Layne Heavy Civil, Inc., 261 N.C. App. 88, 819 S.E.2d 101, 2018 N.C. App. LEXIS 804 (2018).

II.Malpractice.

Legislative Intent. —

The General Assembly, by including separate discovery provisions for both nonapparent injury and foreign objects and retaining the 10-year outer limit for discovery of foreign objects rather than reducing it to four years intended that claimants be given the maximum opportunity in delayed discovery situations to pursue their cause of action subject to the outer time limits in the statute. Black v. Littlejohn, 312 N.C. 626 , 325 S.E.2d 469, 1985 N.C. LEXIS 1500 (1985).

The legislature’s adoption of an outer limit or repose of four years from the last act of the defendant giving rise to the cause of action for nonapparent injuries and 10-year period of repose for discovery of foreign objects clearly have the effect of granting a defendant an immunity to actions for malpractice after the applicable period of time has elapsed. Black v. Littlejohn, 312 N.C. 626 , 325 S.E.2d 469, 1985 N.C. LEXIS 1500 (1985).

Bodily “injury,” as used in the one-year-from-discovery provision of subsection (c), denotes bodily injury resulting from wrongful conduct in a legal sense. Black v. Littlejohn, 312 N.C. 626 , 325 S.E.2d 469, 1985 N.C. LEXIS 1500 (1985).

The malpractice statutes of limitations provide an absolute statutory outer limit. This outer limit is more precisely referred to as a period of repose. Unlike an ordinary statute of limitations which begins running upon accrual of the claim, the period contained in the statute of repose begins when a specific event occurs, regardless of whether a cause of action has accrued or whether any injury has resulted. Black v. Littlejohn, 312 N.C. 626 , 325 S.E.2d 469, 1985 N.C. LEXIS 1500 (1985).

Repose serves as an unyielding and absolute barrier that prevents a plaintiff’s right of action even before his cause of action may accrue, which is generally recognized as the point in time when the elements necessary for a legal wrong coalesce. Black v. Littlejohn, 312 N.C. 626 , 325 S.E.2d 469, 1985 N.C. LEXIS 1500 (1985).

Subsection (c) of this section and G.S. 1-17(b) must be construed in pari materia. Osborne ex rel. Williams v. Annie Penn Mem. Hosp., 95 N.C. App. 96, 381 S.E.2d 794, 1989 N.C. App. LEXIS 681 (1989).

Purpose of Subsection (c). —

Subsection (c) of this section was passed by the General Assembly in an attempt to preserve medical treatment and control malpractice insurance costs, both of which were threatened by the increasing number of malpractice claims. Roberts v. Durham County Hosp. Corp., 56 N.C. App. 533, 289 S.E.2d 875, 1982 N.C. App. LEXIS 2445 (1982), aff'd, 307 N.C. 465 , 298 S.E.2d 384, 1983 N.C. LEXIS 1080 (1983).

The legislature passed subsection (c) specifically to address the question of when an action for medical malpractice would be barred by time. Lackey v. Bressler, 86 N.C. App. 486, 358 S.E.2d 560, 1987 N.C. App. LEXIS 2745 (1987).

Effect of Subsection (c). —

Subsection (c) of this section significantly altered the law of limitations applicable to professional malpractice actions. It changed the time of accrual of such actions from the date of discovery of injury to the date of defendant’s last act which gave rise to the action. Flippin v. Jarrell, 301 N.C. 108 , 270 S.E.2d 482, 1980 N.C. LEXIS 1160 (1980).

Although the statute of limitations set out in subsection (c) of this section begins to run at the time of the last negligent act or breach of some duty, and not the time actual damage is discovered or fully ascertained, this statute still requires, as an element of the cause of action for malpractice, that plaintiff suffer some loss or injury, whether it be apparent or hidden. Snipes v. Jackson, 69 N.C. App. 64, 316 S.E.2d 657, 1984 N.C. App. LEXIS 3383 (1984).

Although subsection (c) extends the limitations period where the discovery of an injury is delayed, this extension was not intended to defeat the outer time limit of four years from the defendant’s last act. Mathis v. May, 86 N.C. App. 436, 358 S.E.2d 94, 1987 N.C. App. LEXIS 2735 (1987).

This section requires that a medical malpractice cause of action must be filed within three years of the date of the last act giving rise to the cause of action, and it also gives a period of repose of four years. Bowlin v. Duke Univ., 119 N.C. App. 178, 457 S.E.2d 757, 1995 N.C. App. LEXIS 417 (1995).

Suit was untimely under G.S. 1-15(c) statute of repose, and the G.S. 1-15(c) limitations period, which began to run with the last act of negligent malpractice committed by defendant in September 2003, when defendant recommended unsuitable investments to plaintiff one; sufficient evidence was not submitted of a timeline to allow the jury to find that the suit was timely. Orr v. Calvert, 212 N.C. App. 254, 713 S.E.2d 39, 2011 N.C. App. LEXIS 1163 , rev'd, 365 N.C. 320 , 720 S.E.2d 387, 2011 N.C. LEXIS 989 (2011).

Negligence claim failed as to plaintiff two as plaintiffs failed to present sufficient evidence of a timeline to submit their claims to the jury since although a negligence claim was filed within the four-year maximum limit provided by G.S. 1-15(c) , the suit had to have been filed within three years of the last act of defendant giving rise to the cause of action, unless not discoverable by plaintiff two for more than two years, in which case plaintiff two had one year from the time of discovery; because three years after the last alleged negligent act of defendant would have been February 2007, the suit was not timely filed unless plaintiff two was subject to the discovery provision of G.S. 1-15(c) , which allowed an action to be commenced within one year of discovery, and plaintiff two did not show that plaintiff two did not discover the loss until December 2006. Orr v. Calvert, 212 N.C. App. 254, 713 S.E.2d 39, 2011 N.C. App. LEXIS 1163 , rev'd, 365 N.C. 320 , 720 S.E.2d 387, 2011 N.C. LEXIS 989 (2011).

Applicability Contingent on Performance or Failure to Perform Professional Services. —

Subsection (c) of this section applies to all claims of malpractice, not just medical malpractice. However, in order for this statute to apply, there must first be a performance of or failure to perform professional services. Doe v. American Nat'l Red Cross, 798 F. Supp. 301, 1992 U.S. Dist. LEXIS 11220 (E.D.N.C. 1992) (decided under prior law.).

Subsection (c) of this section establishes two separate grounds for malpractice: (1) malpractice arising out of the performance of professional services; and (2) the failure to perform professional services. Callahan v. Rodgers, 89 N.C. App. 250, 365 S.E.2d 717, 1988 N.C. App. LEXIS 274 (1988).

Subsection (c) is broad enough to encompass professionals other than those in health care. However, the statute does not mean that all persons labeled “professionals” necessarily fall within its ambit. The North Carolina Professional Liability Study Commission wanted the statute to include some, but not necessarily all, professionals other than “health care providers.” The Legislature intended the statute to apply to malpractice claims against all professionals who are not dealt with more specifically by some other statute. Trustees of Rowan Technical College v. J. Hyatt Hammond Assocs., 313 N.C. 230 , 328 S.E.2d 274, 1985 N.C. LEXIS 1539 (1985).

Professional Services. —

The rendering of “professional services” as that term is set forth in this section necessarily includes those services where a professional relationship exists between plaintiff and defendant, such as a physician-patient or attorney-client relationship. Doe v. American Nat'l Red Cross, 798 F. Supp. 301, 1992 U.S. Dist. LEXIS 11220 (E.D.N.C. 1992) (decided under prior law.).

Where the Red Cross did not treat or care for plaintiff in any way other than to initially take and process the blood which was transfused into him, no professional relationship existed. The Red Cross did not render professional services to him as that term is used in subsection (c) of this section. As such, the action was not one for malpractice, and as a result, the 4-year statute of repose in subsection (c) of this section did not apply to bar plaintiff’s claim. Rather, the action was subject to the personal injury statutes of limitations found in G.S. 1-52(5) , (16). Doe v. American Nat'l Red Cross, 798 F. Supp. 301, 1992 U.S. Dist. LEXIS 11220 (E.D.N.C. 1992) (decided under prior law.).

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

An award of summary judgment on the application of the statute of repose as to a client’s professional negligence claim against an accountant was improper because the parties disputed the scope of the accountant’s contracted-for services and what constituted their last act that triggered the running of the statute of repose on the claim. Head v. Gould Killian CPA Grp., P.A., 371 N.C. 2 , 812 S.E.2d 831, 2018 N.C. LEXIS 331 (2018).

Fraud by an attorney is not within the scope of professional services as that term is used in G.S. 1-15(c) , and thus cannot be malpractice within the meaning of that statute. Bader v. Mark Kurdys & Roberts & Stevens P.A., 2017 U.S. Dist. LEXIS 141893 (W.D.N.C. Sept. 1, 2017).

Applicability of Subsection (c) to Actions Already Accrued on Effective Date. —

If a new statute, such as subsection (c) of this section, shortens the period of limitation, it must, to comport with due process, provide a reasonable time for filing sections which have accrued but which have not been filed when the new statute takes effect. Flippin v. Jarrell, 301 N.C. 108 , 270 S.E.2d 482, 1980 N.C. LEXIS 1160 (1980).

Subsection (c) of this section, which changed the time of accrual of malpractice actions from the date of discovery of injury to the date of defendant’s last act which gave rise to the action and shortened the limitation period from 10 years to four years for latent nonforeign object claims discovered two or more years after defendant’s last negligent act, could not constitutionally be applied to bar plaintiff’s claim for medical expenses and loss of services of her child, where the child’s injury was discovered on November 22, 1976, and subsection (c) of this section became effective on January 1, 1977, as plaintiff’s claim as it existed before January 1, 1977, did not accrue until November 22, 1976, and the statute thus provided plaintiff only 39 days in which to file her claim after she discovered it, and the statute as applied to plaintiff would thus not afford her a reasonable time within which to bring her action. Flippin v. Jarrell, 301 N.C. 108 , 270 S.E.2d 482, 1980 N.C. LEXIS 1160 (1980).

Where the four-year period of limitation contained in subsection (c) of this section could not constitutionally be applied to plaintiff’s claim for medical malpractice, the one-year-from-discovery clause of the statute which qualifies the limitation period could not be applied to the claim either, since the one-year qualification clause is not an independent, separable provision but must stand or fall with the time limitation which it qualifies. Flippin v. Jarrell, 301 N.C. 108 , 270 S.E.2d 482, 1980 N.C. LEXIS 1160 (1980).

As to retroactivity of subsection (c) of this section, see also Nationwide Mut. Ins. Co. v. Weeks-Allen Motor Co., 18 N.C. App. 689, 198 S.E.2d 88, 1973 N.C. App. LEXIS 1985 (1973) and Ballenger v. Crowell, 38 N.C. App. 50, 247 S.E.2d 287, 1978 N.C. App. LEXIS 2084 (1978) (cited above).

Failure to make a proper disclosure of risks involved in medical procedure is in the nature of malpractice (negligence) and the three-year statute of limitations applies. Nelson v. Patrick, 58 N.C. App. 546, 293 S.E.2d 829, 1982 N.C. App. LEXIS 2802 (1982).

Accrual of Cause of Action for Actions and Omissions. —

This section provides that for both actions and omissions, the cause of action accrues and the statute of limitations begins to run at the time of defendant’s last act giving rise to the cause of action. Callahan v. Rodgers, 89 N.C. App. 250, 365 S.E.2d 717, 1988 N.C. App. LEXIS 274 (1988).

Where plaintiff suffered injury after falling from a gurney, the statute of limitations accrued on the date of the fall, although plaintiffs were told by hospital personnel that there was not and would not be any brain damage or injury. Hussey v. Montgomery Mem. Hosp., 114 N.C. App. 223, 441 S.E.2d 577, 1994 N.C. App. LEXIS 307 (1994).

A cause of action for malpractice arising out of the performance or failure to perform professional services accrues at the time of the occurrence of the last act of the defendant giving rise to the claim; from that date, plaintiff has a minimum of three years within which to bring a suit for medical malpractice, but must bring the suit within four years of the last act of the defendant giving rise to the cause of action. Horton v. Carolina Medicorp, Inc., 119 N.C. App. 777, 460 S.E.2d 567, 1995 N.C. App. LEXIS 681 (1995), rev'd, 344 N.C. 133 , 472 S.E.2d 778, 1996 N.C. LEXIS 419 (1996).

Substantial completion of service rendered by defendant attorney occurred when he failed to timely file a change of condition request in workers’ compensation action; this omission was defendant’s last act giving rise to plaintiff’s claim. Garrett v. Winfree, 120 N.C. App. 689, 463 S.E.2d 411, 1995 N.C. App. LEXIS 904 (1995).

Legal malpractice action accrues at the time of the last act of the defendant giving rise to the cause of action, but if the claimant’s loss is not readily apparent to the claimant at the time of its origin, and is discovered or should reasonably be discovered by the claimant two or more years after the last act of the defendant giving rise to the cause of action, suit must be commenced within one year from the date discovery is made. Bolton v. Crone, 162 N.C. App. 171, 589 S.E.2d 915, 2004 N.C. App. LEXIS 56 (2004).

Clients’ legal malpractice action against their attorney and his law firm was time-barred under G.S. 1-15(c) because the last act of the attorney giving rise to the clients’ cause of action occurred no later than when the clients signed a release prepared by their insurer and took possession of their settlement check; thereafter, the acts of mailing and filing a dismissal with prejudice following the settlement were duties that the attorney and his firm performed as officers of the court to comply with the terms of the settlement agreement previously signed by the clients. Ramboot Inc. v. Lucas, 181 N.C. App. 729, 640 S.E.2d 845, 2007 N.C. App. LEXIS 398 (2007).

Trial court correctly determined that a portion of clients’ claims against attorneys were not barred by the three-year statute of limitations set forth in G.S. 1-15(c) because the trial court found that the attorneys engaged in negligent conduct from 22 April 2005 through 15 March 2006, and the clients’ complaint was filed on 6 November 2007; when the attorneys’ last act of negligence occurred was a factual issue to be determined by the trial court, sitting in the role of the jury, and the trial court found that from April 22, 2005, until the dismissal of a state court action, the attorneys failed to fully advise the clients of the risk they would be found liable for some or all of attorneys’ fees. Chase Dev. Group v. Fisher, Clinard & Cornwell, PLLC, 211 N.C. App. 295, 710 S.E.2d 218, 2011 N.C. App. LEXIS 738 (2011).

Plaintiffs’ legal malpractice claim was barred by the four-year statute of repose, G.S. 1-15(c) , as the last act of an attorney’s alleged professional negligence occurred more than four years before suit was filed, when he inquired about the status of securities purchases he was handling for plaintiffs and was advised that the transaction was complete. Carle v. Wyrick, Robbins, Yates & Ponton, LLP, 225 N.C. App. 656, 738 S.E.2d 766, 2013 N.C. App. LEXIS 220 (2013).

Where a client discovered, or reasonably should have discovered, the alleged injury resulting from her attorneys’ alleged acts or omissions well before the two-year period, the “one year from the date discovery is made” provision did not apply, and the client was required to initiate suit within the three year statute of limitations. Hackos v. Goodman, 228 N.C. App. 33, 745 S.E.2d 336, 2013 N.C. App. LEXIS 679 (2013).

Certification Requirements for Medical Malpractice. —

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

Action Against Environmental Consultant. —

A company seeking environmental cleanup of its property was required to commence its malpractice action against its cleanup consultant within four years after the last act giving rise to the action. Delta Envtl. Consultants of N.C. Inc. v. Wysong & Miles Co., 132 N.C. App. 160, 510 S.E.2d 690, 1999 N.C. App. LEXIS 83 (1999).

The continued course of treatment doctrine applies to situations in which the doctor continues a particular course of treatment over a period of time. When the injurious consequences arise from a continuing course of negligent treatment, the statute does not ordinarily begin to run until the injurious treatment is terminated. The malpractice in such cases is regarded as a continuing tort because of the persistence of the physician or surgeon in continuing and repeating the wrongful treatment. Callahan v. Rodgers, 89 N.C. App. 250, 365 S.E.2d 717, 1988 N.C. App. LEXIS 274 (1988).

Because the “continuing course of treatment” doctrine affects determination of the accrual date, and the accrual date under subsection (c) of this section is the starting date for the running of the statute of limitations and statute of repose, it is correct to use the “continuing course of treatment” doctrine to determine the starting date for the running of the statute of repose. It is only by using the doctrine that a court can determine defendant’s relevant “last act.” Stallings v. Gunter, 99 N.C. App. 710, 394 S.E.2d 212, 1990 N.C. App. LEXIS 827 (1990).

An exception to the rule that malpractice action accrues at the time of defendant’s negligence is the continued course of treatment doctrine; under this doctrine, the action accrues at the conclusion of the physician’s treatment of the patient, so long as the patient has remained under the continuous treatment of the physician for the injuries which gave rise to the cause of action. Horton v. Carolina Medicorp, Inc., 119 N.C. App. 777, 460 S.E.2d 567, 1995 N.C. App. LEXIS 681 (1995), rev'd, 344 N.C. 133 , 472 S.E.2d 778, 1996 N.C. LEXIS 419 (1996).

The continuing course of treatment doctrine in medical malpractice claims tolls the running of the statute of limitations for the period between the original negligent act and the ensuing discovery and correction of its consequences; however, the claim still accrues at the time of the original negligent act or omission. Horton v. Carolina Medicorp, Inc., 344 N.C. 133 , 472 S.E.2d 778, 1996 N.C. LEXIS 419 (1996).

The continuing course of treatment doctrine applies to hospitals in the same manner that it does to other health care providers. Horton v. Carolina Medicorp, Inc., 344 N.C. 133 , 472 S.E.2d 778, 1996 N.C. LEXIS 419 (1996).

Where a plaintiff shows a continuous relationship with a physician and subsequent treatment by the physician related to the original act or omission that gave rise to the claim, the continuing course of treatment doctrine tolls the running of the statute of limitations for the period between the original negligent act and the time the damage is discovered and corrected. Goins v. Puleo, 130 N.C. App. 28, 502 S.E.2d 621, 1998 N.C. App. LEXIS 844 (1998), rev'd in part, 350 N.C. 277 , 512 S.E.2d 748, 1999 N.C. LEXIS 233 (1999).

Where a genuine issue of material fact existed about whether to apply the continuing course of treatment doctrine in a dental negligence case summary judgment for defendant on the issue of the expiration of the statute of limitations period was precluded. Rissolo v. Sloop, 135 N.C. App. 194, 519 S.E.2d 766, 1999 N.C. App. LEXIS 972 (1999).

For case holding the continuing course of treatment exception applicable in a medical malpractice action alleging that defendant negligently caused and continued plaintiff’s addiction to narcotics, see Ballenger v. Crowell, 38 N.C. App. 50, 247 S.E.2d 287, 1978 N.C. App. LEXIS 2084 (1978).

Physician assistant’s prescription refill constituted treatment under the continuing course of treatment doctrine where doctor not only performed surgery but also rendered post-operative corrective treatment approximately 17 times after the surgery and ordered original steroid prescription. Whitaker v. Akers, 137 N.C. App. 274, 527 S.E.2d 721, 2000 N.C. App. LEXIS 315 (2000).

Continued Course of Treatment Doctrine Not Applicable. —

The “continuing course of treatment” doctrine is not a part of this section, but rather, is a construct of the courts that will not be expanded to encompass negligence arising from provision of professional engineering services between sophisticated corporate parties. Delta Envtl. Consultants of N.C. Inc. v. Wysong & Miles Co., 132 N.C. App. 160, 510 S.E.2d 690, 1999 N.C. App. LEXIS 83 (1999).

Therapeutic Purpose. —

Summary judgment was properly granted for the doctor because the trial court correctly found no issue of material fact as to whether the Gore-Tex barrier had a therapeutic purpose and thus, correctly concluded that the four-year statute of limitations applied as a matter of law. Assuming that the Gore-Tex barrier should have been removed eight weeks after implantation, the barrier still had a therapeutic purpose on the date it was implanted: to prevent adhesion formation at the incision site and that therapeutic purpose did not disappear simply because the barrier was not timely removed. Bryant v. Wake Forest Univ. Baptist Med. Ctr., 2022-NCCOA-89, 870 S.E.2d 269, 2022- NCCOA-89, 2022 N.C. App. LEXIS 115 (N.C. Ct. App. 2022).

Jury Instruction on Effect of Discovery of Injury. —

Defendant was entitled to a jury instruction on the effect of plaintiff’s discovery of his injury vis-a-vis the continuous course of conduct doctrine and the running of the statute of limitations; plaintiff knew he was incontinent and impotent, but there was some question whether he knew or should have known that defendant’s conduct was wrongful and whether that conduct caused his incontinence and impotence, prior to the running of the statute of limitations. Whitaker v. Akers, 137 N.C. App. 274, 527 S.E.2d 721, 2000 N.C. App. LEXIS 315 (2000).

Where, following surgery, defendant continued to provide treatment for the same injury over a period of six months, culminating in plaintiff’s last visit on June 24, 1981, plaintiff had until June 24, 1984 in which to file an action for malpractice under the continued course of treatment rule. Callahan v. Rodgers, 89 N.C. App. 250, 365 S.E.2d 717, 1988 N.C. App. LEXIS 274 (1988).

Letter to Patient Did Not Qualify as Continuing Relationship. —

Physician’s letter to a patient upon whom he had performed surgery, indicating the need for the removal of a foreign object, did not qualify as a “continuing relationship” under the continuing treatment doctrine, when the letter was written five years after the last physician-patient contact and which letter was prompted by a chiropractor’s suggestion of an abnormality in the surgical area. Hensell v. Winslow, 106 N.C. App. 285, 416 S.E.2d 426, 1992 N.C. App. LEXIS 457 (1992).

Neither Did Visits to Emergency Room. —

Plaintiff’s diversity-based medical malpractice action against a hospital for damages she suffered after the hospital allegedly withheld an X-ray report from plaintiff and her family physician was barred by the statute of limitations because plaintiff discovered the hospital’s failure to report the X-ray within two years of the date the X-ray was made, such that plaintiff could not avail herself of the extension of the filing period conferred as a result of latent injuries. Furthermore, plaintiff failed to show how her unscheduled visits to the emergency room represented an ongoing relationship to advance the treatment of her asthma. Conner v. St. Luke's Hosp., 996 F.2d 651, 1993 U.S. App. LEXIS 13517 (4th Cir. 1993).

Prescription Medication Not Continuing Course of Treatment. —

Prescription medication, absent any other contact with a doctor, did not constitute a continuing course of treatment and, therefore, did not extend the statute of limitations period. Trexler v. Pollock, 135 N.C. App. 601, 522 S.E.2d 84, 1999 N.C. App. LEXIS 1184 (1999), cert. denied, 351 N.C. 480 , 543 S.E.2d 509, 2000 N.C. LEXIS 324 (2000), cert. denied, 351 N.C. 646 , 543 S.E.2d 884, 2000 N.C. LEXIS 427 (2000).

Applicability of Latent Injury Discovery Rule. —

For a plaintiff to avail himself of the one year extension under the latent injury discovery rule, he must show that: (1) the injury of economic loss originated under circumstances making the injury or loss not readily apparent at the time of its origin; (2) the injury or loss was discovered or should reasonably have been discovered by the plaintiff two or more years after the occurrence of the last act of the defendant giving rise to the cause of action; (3) suit was commenced within one year from the date discovery was made; and (4) the statute of limitations may not, in any case, have been reduced to below three years or extended beyond four years. Thorpe v. DeMent, 69 N.C. App. 355, 317 S.E.2d 692, 1984 N.C. App. LEXIS 3469 , aff'd, 312 N.C. 488 , 322 S.E.2d 777, 1984 N.C. LEXIS 2326 (1984).

Plaintiff’s discovery of defendant’s failure to inform her of the availability of a drug as a less drastic alternative to the hysterectomy performed by defendant on plaintiff qualified as discovery of a nonapparent “injury” that comes within the one-year discovery provision of subsection (c). Black v. Littlejohn, 312 N.C. 626 , 325 S.E.2d 469, 1985 N.C. LEXIS 1500 (1985).

If the injury suffered by a patient was not readily apparent to the patient at the time of its origin and the injury was not discovered by plaintiff for two or more years after the last act of the defendant giving rise to the claim, an action may be filed within one year of the date of such discovery, but must be filed within four years of the last alleged negligent act of the defendant. Teague v. Randolph Surgical Assocs., 129 N.C. App. 766, 501 S.E.2d 382, 1998 N.C. App. LEXIS 769 (1998).

Trial court erred by awarding summary judgment to defendants on plaintiff’s legal malpractice claim because a genuine issue of material fact existed as to whether the subject stipulations, if properly filed by defendants, would have been binding, and it could be inferred that plaintiff’s malpractice claim was not time-barred. Podrebarac v. Horack, Talley, Pharr & Lowndes, P.A., 2021-NCCOA-529, 279 N.C. App. 624, 866 S.E.2d 495, 2021- NCCOA-529, 2021 N.C. App. LEXIS 532 (2021).

Discovery Rule Applied. —

Client alleged he was unaware that the signatures on the mediated settlement agreement had to be notarized to be enforceable, and he claimed he did not discover this until the district court so held; the earliest the client could have been expected to have discovered the defect was when the other attorney filed a motion to dismiss his motion to enforce the agreement, and this date was more than two years after the last act giving rise to the claim, and thus the discovery rule applied. Podrebarac v. Horack, Talley, Pharr, & Lowndes, P.A., 231 N.C. App. 70, 752 S.E.2d 661, 2013 N.C. App. LEXIS 1243 (2013).

Where plaintiff was shown an x-ray by her chiropractor which revealed the presence of a drain in her body left over from her prior plastic surgery, and where the chiropractor made plaintiff aware of the potential for severe illness or death if the drain remained, and he advised plaintiff to contact her plastic surgeon to have the drain removed, plaintiff was made aware, not only that a foreign object was present in her body, but that it was due to wrongful conduct, sufficient to run the one-year statute of limitations. Hensell v. Winslow, 106 N.C. App. 285, 416 S.E.2d 426, 1992 N.C. App. LEXIS 457 (1992).

Plaintiff ’s claim against health care provider for unauthorized disclosure of communications was one for malpractice, and the applicable statute of limitations was subsection (c) of this section, rather than G.S. 1-52 . The cause of action accrued at the time of the last unauthorized discussion of the patient’s case with another doctor. Watts v. Cumberland County Hosp. Sys., 75 N.C. App. 1, 330 S.E.2d 242, 1985 N.C. App. LEXIS 3577 (1985), rev'd, 317 N.C. 321 , 345 S.E.2d 201, 1986 N.C. LEXIS 2791 (1986).

Effect of Subsection (c). —

Nevada limited liability company could not amend its suit to allege a tort claim of a North Carolina limited liability company after the Nevada company succeeded to the rights of the North Carolina company following a merger under G.S. 55-11-06(a)(4) as it did not assert its right to file the tort claim before the claim became time-barred under G.S. 1-15(c) ; the Nevada company’s suit clearly alleged violations of patent rights that had been assigned to it, and did not give notice that the suit was intended to be a re-filing of a malpractice case by the North Carolina company that had been dismissed under G.S. 1A-1 , N.C. R. Civ. P. 41. Even if the amendment were allowed, it would not relate back under G.S. 1A-1 , N.C. R. Civ. P. 15(c). Revolutionary Concepts, Inc. v. Clements Walker PLLC, 2012 NCBC 14, 2012 NCBC LEXIS 14 (N.C. Super. Ct. Mar. 8, 2012), aff'd in part, 227 N.C. App. 102, 744 S.E.2d 130, 2013 N.C. App. LEXIS 482 (2013).

Nevada limited liability company did not become the real party in interest under G.S. 1A-1 , N.C. Gen. R. Civ. P. 17 to bring a malpractice case previously dismissed by a North Carolina limited liability company after the Nevada company succeeded to the rights of the North Carolina company following a merger under G.S. 55-11-06(a)(4) as the Nevada company did not bring the North Carolina company’s tort claim before they became time-barred under G.S. 1-15(c) . Revolutionary Concepts, Inc. v. Clements Walker PLLC, 2012 NCBC 14, 2012 NCBC LEXIS 14 (N.C. Super. Ct. Mar. 8, 2012), aff'd in part, 227 N.C. App. 102, 744 S.E.2d 130, 2013 N.C. App. LEXIS 482 (2013).

Claim Not Time-Barred. —

Although a title insurer claimed a trial court erred in determining that G.S. 1-52(9) was the statute of limitations that controlled claims the insurer could have filed against a law firm and its attorneys rather than G.S. 1-15 , the trial court properly found the insurer was not time barred from filing a claim for professional negligence or negligent misrepresentation at the time the insurer was notified of a bank’s claim under the policy but the insurer took no action against the firm or its attorneys; the law firm and its attorneys had issued a final opinion of title with respect to a certain parcel that the bank later discovered had been previously encumbered. Branch Banking & Trust Co. v. Chi. Title Ins. Co., 214 N.C. App. 459, 714 S.E.2d 514, 2011 N.C. App. LEXIS 1874 (2011).

Present complaint was filed within one year of the date a motion to dismiss had been filed, which was the earliest the client could have been expected to have discovered the defect in question, and thus the complaint was not barred by the statute of limitations. Podrebarac v. Horack, Talley, Pharr, & Lowndes, P.A., 231 N.C. App. 70, 752 S.E.2d 661, 2013 N.C. App. LEXIS 1243 (2013).

Although it was possible that discovery would reveal the client ought to have been aware of his injury earlier, the time bar was not apparent from the face of the complaint. Podrebarac v. Horack, Talley, Pharr, & Lowndes, P.A., 231 N.C. App. 70, 752 S.E.2d 661, 2013 N.C. App. LEXIS 1243 (2013).

Statute not applicable to ordinary negligence. —

Trial court erred in dismissing the plaintiff’s action with prejudice on the grounds that the plaintiff violated the statute of repose because the plaintiff’s action was subject to the three-year statute of limitations, not the statute of repose, as the plaintiff’s claims against the defendant sounded in ordinary negligence; and because, although the plaintiff voluntarily dismissed the plaintiff’s complaint, the plaintiff timely refiled the complaint within one year. Goodman v. Living Centers-Southeast, Inc., 234 N.C. App. 330, 759 S.E.2d 676, 2014 N.C. App. LEXIS 608 (2014).

Malpractice Claim Barred. —

A negligence action against attorneys by the liquidator of a life insurer was barred where more than three years elapsed since the last negligent act of defendants and, where the complaint did not allege “continuous representation” by defendants connected with the original negligent act, that doctrine did not apply to toll running of the statute. State ex rel. Long v. Petree Stockton, 129 N.C. App. 432, 499 S.E.2d 790, 1998 N.C. App. LEXIS 643 (1998).

Plaintiff’s claim based on medical malpractice was barred by the three-year statute of limitations of subsection (c) of this section and by the provisions of G.S. 1-17(b) requiring an action for malpractice in the performance of professional services for a minor to be brought before the minor attains the full age of 19, where the last act of negligence by defendants allegedly occurred in 1962 when plaintiff was four years old and plaintiff filed his claim one day before his twentieth birthday, and there was no merit to plaintiffs’ contention that G.S. 1-17(b) did not apply to an action brought by a plaintiff in his own behalf. Hohn v. State, 48 N.C. App. 624, 269 S.E.2d 307, 1980 N.C. App. LEXIS 3255 (1980).

Malpractice complaint filed on November 20, 1992, was barred by the statute of repose where the last alleged negligent act of the defendants giving rise to this cause of action occurred in 1982 and plaintiff could not prove later treatment. Sidney v. Allen, 114 N.C. App. 138, 441 S.E.2d 561, 1994 N.C. App. LEXIS 300 (1994), aff'd, 341 N.C. 190 , 459 S.E.2d 237, 1995 N.C. LEXIS 383 (1995).

Malpractice action against attorney for alleged negligence in failing to procure the transfer of a lot was barred by subsection (c), where plaintiffs did not institute their action within three years of the negligence; action for a separate act of negligence in procuring a deed to the lot from individuals who had filed for bankruptcy, was filed within three years of the negligent act and was not barred. McGahren v. Saenger, 118 N.C. App. 649, 456 S.E.2d 852, 1995 N.C. App. LEXIS 333 (1995).

The patient’s medical malpractice action was barred by the limitation of this subsection, where the last act giving rise to the patient’s cause occurred more than three years before the patient filed her action. Jones v. Asheville Radiological Group, 129 N.C. App. 449, 500 S.E.2d 740, 1998 N.C. App. LEXIS 647 (1998).

Since plaintiff filed her medical malpractice claim more than three years from the last act giving rise to plaintiff’s cause of action, the trial court did not err in granting defendants summary judgment. Jones v. Asheville Radiological Group, P.A., 134 N.C. App. 520, 518 S.E.2d 528, 1999 N.C. App. LEXIS 871 (1999), rev'd in part, 351 N.C. 348 , 524 S.E.2d 804, 2000 N.C. LEXIS 130 (2000).

This section barred the plaintiff bank’s claims based on legal malpractice where the defendant closed the loan transaction more than six years before the amended complaint was filed and there were no allegations of an ongoing attorney-client relationship between plaintiff and defendant. NationsBank v. Parker, 140 N.C. App. 106, 535 S.E.2d 597, 2000 N.C. App. LEXIS 1092 (2000).

Causes of action by decedent’s heirs against an attorney who drafted the decedent’s will, codicil, and other documents, which transferred the decedent’s property to a university, were subject to the three-year statute of limitations for legal malpractice despite the heirs’ attempts to frame their suit as one for breach of fiduciary duty. Baars v. Campbell Univ., Inc., 148 N.C. App. 408, 558 S.E.2d 871, 2002 N.C. App. LEXIS 30 (2002).

As five years had passed before client brought a legal malpractice action it was barred by the statute of limitations; the allegations of fraud and constructive fraud were basically the same claims as the legal malpractice and, therefore, also failed. Fender v. Deaton, 153 N.C. App. 187, 571 S.E.2d 1, 2002 N.C. App. LEXIS 1244 (2002).

Ex-client’s malpractice action was barred by the statute of limitations as the alleged acts of negligence related only to the representation at the trial court level and the ex-client did not appeal the equitable distribution judgment, which occurred more than three years prior to the commencement of the malpractice action in violation of subsection (c) of this section. Teague v. Isenhower, 157 N.C. App. 333, 579 S.E.2d 600, 2003 N.C. App. LEXIS 546 (2003).

Claims for medical malpractice and wrongful death which an administrator filed against a doctor in July 2001, alleging that the administrator’s mother died in April 1999 because the doctor misread a chest x-ray in February 1997, were barred by G.S. 1-15(c) and 1-53(4), and the trial court properly granted a motion to dismiss the action. Udzinski v. Lovin, 159 N.C. App. 272, 583 S.E.2d 648, 2003 N.C. App. LEXIS 1508 (2003), aff'd, 358 N.C. 534 , 597 S.E.2d 703, 2004 N.C. LEXIS 658 (2004).

A legal malpractice case alleging that the lawyers failed to advise the client of use restrictions on land purchased by the client was time barred, and the trial court’s order dismissing the case was affirmed, where, in a separate case, the client had failed to specifically deny that he was notified of the land use restrictions approximately two months after closing on the purchase of the land, and over three years before filing the legal malpractice case. Bolton v. Crone, 162 N.C. App. 171, 589 S.E.2d 915, 2004 N.C. App. LEXIS 56 (2004).

Appellate court rejected plaintiff’s claim that action, which she filed individually and as the administrator of her mother’s estate alleging that attorneys who represented her mother while she was still alive committed malpractice, was not barred by G.S. 1-15 because the statute of limitations was tolled. Livingston v. Adams Kleemeier Hagan Hannah & Fouts, P.L.L.C., 163 N.C. App. 397, 594 S.E.2d 44, 2004 N.C. App. LEXIS 401 (2004).

Trial court properly dismissed an estate’s medical malpractice suit against the hospital defendants, the medical practice defendants, and a doctor where a first complaint that was voluntarily dismissed did not contain a G.S. 1A-1 , N.C. R. Civ. P. 9(j) certification, and the re-filed complaint was filed after the statute of limitations expired and the 120-day extension, if it had been sought, would have expired; there was no expert review prior to the commencement of the original action, which was contrary to the North Carolina legislature’s intent in enacting Rule 9(j). Estate of Barksdale v. Duke Univ. Med. Ctr., 175 N.C. App. 102, 623 S.E.2d 51, 2005 N.C. App. LEXIS 2753 (2005).

Even assuming that a continuing doctor/patient relationship for treatment related to the patient’s negligence action, there was no competent evidence to suggest that the patient’s severed nerve could have been restored or repaired, and therefore the continuing course of treatment doctrine was inapplicable; thus, applying G.S. 1-52(16) and G.S. 1-15(c) , the three-year statute of limitations began to run with the doctor’s last act giving rise to the cause of action, i.e. the surgery in which he severed the nerve, and barred the patient’s cause of action. Webb v. Hardy, 182 N.C. App. 324, 641 S.E.2d 754, 2007 N.C. App. LEXIS 575 (2007).

Client’s professional negligence claim against an attorney was barred by the statute of repose, G.S. 1-15(c) , because the client brought his professional malpractice action nearly seven years after the attorney’s last act; because the attorney voluntarily dismissed without prejudice the client’s claims in October 1997, the last opportunity for him to act on the claims occurred in October 1998, and the client brought his professional malpractice action in May 2006. Goodman v. Holmes & McLaurin, 192 N.C. App. 467, 665 S.E.2d 526, 2008 N.C. App. LEXIS 1622 (2008).

Client’s legal malpractice claim was properly dismissed under G.S. 1A-1 , Rule 12(b)(6), as time barred, because the action was filed over three years after end of trial and, one count alleged negligence in trial strategy, response to pretrial stipulations, and discovery, all of which necessarily occurred before or during trial, while the second count alleged negligence in failure to challenge the validity of a prenuptial agreement on appeal, which was in adhering to the rules of court and thus, did not constitute malpractice. Ventriglia v. Deese, 194 N.C. App. 344, 669 S.E.2d 817, 2008 N.C. App. LEXIS 2263 (2008).

Trial court did not err in concluding that a portion of clients’ claims against attorneys were barred by the three-year statute of limitations set forth in G.S. 1-15(c) because the evidence presented at trial was conflicting as to whether the attorneys represented the clients from October 2003 through April of 2004, and the trial court found that when a corporation filed an amended complaint in state court action adding the clients as individual defendants, the attorneys advised opposing counsel that he did not represent the clients. Chase Dev. Group v. Fisher, Clinard & Cornwell, PLLC, 211 N.C. App. 295, 710 S.E.2d 218, 2011 N.C. App. LEXIS 738 (2011).

Plaintiffs’ claims for legal malpractice and breach of fiduciary duty against an attorney were barred by the statute of repose of G.S. 1-15(c) . The attorney owed no continuing duty to plaintiffs after he drafted a trust restatement and two other documents. Babb v. Hoskins, 223 N.C. App. 103, 733 S.E.2d 881, 2012 N.C. App. LEXIS 1184 (2012).

Because plaintiffs’ claim was brought on May 31, 2011, which was within the three-year statute of limitations, the trial court erred when it dismissed plaintiffs’ legal malpractice claim as it related to the 2008 preparation of tax returns. Babb v. Hoskins, 223 N.C. App. 103, 733 S.E.2d 881, 2012 N.C. App. LEXIS 1184 (2012).

Because the last act giving rise to a client’s legal malpractice claim — the attorneys’ alleged failure to petition from the appellate court’s punishment for gross violations of the rules of appellate procedure — occurred more than three years before she filed suit, her claims were time-barred and properly dismissed. Hackos v. Goodman, 228 N.C. App. 33, 745 S.E.2d 336, 2013 N.C. App. LEXIS 679 (2013).

Trial court did not err dismissing a patient’s medical malpractice complaint because the patient failed to file a complaint including a valid certification within the statute of limitations, and thus, granting her motion to amend her second complaint would have been futile; the complaint failed to allege that a person reasonably expected to qualify as an expert had reviewed all available medical records pertaining to the alleged negligence. Fintchre v. Duke Univ., 241 N.C. App. 232, 773 S.E.2d 318, 2015 N.C. App. LEXIS 446 (2015).

Court of appeals erred in reversing an order dismissed a child’s medical malpractice claims as time barred because the child filed his action after the statute of limitations expired, and the appointment of a guardian ad litem provided the child a legal representative and removed his disability of minority; the removal of the disability eliminates the tolling and starts the running of the applicable three-year statute of limitations for medical malpractice actions. King v. Albemarle Hosp. Auth., 370 N.C. 467 , 809 S.E.2d 847, 2018 N.C. LEXIS 58 (2018).

Claims Were Time-Barred. —

In an action by a principal against, inter alia, a developer and the developer’s attorney, claiming entitlement to indemnification, and alleging breach of contract and negligent misrepresentation, summary judgment under Fed. R. Civ. P. 56(c) was granted for the developer’s attorney where the developer’s legal malpractice cross-claim, and the principal’s claims were time-barred under G.S. 1-15(c) and G.S. 1-52(1) , and (5), as their claims were filed after the three year limitations period. Cincinnati Ins. Co. v. Centech Bldg. Corp., 286 F. Supp. 2d 669, 2003 U.S. Dist. LEXIS 18585 (M.D.N.C. 2003).

Partnership’s claims against an attorney were time-barred because (1) the statute of repose did not apply, as no economic or monetary loss was shown, (2) the partnership did not explain why claims were not reasonably discoverable within the limitations period, and (3) the partnership did not provide a specific injury date from which to measure a time period. BDM Invs. v. Lenhil, Inc., 264 N.C. App. 282, 826 S.E.2d 746, 2019 N.C. App. LEXIS 278 (2019).

Plaintiff’s claims regarding the execution of a civil drug tax lien and the subsequent search occurred more than three years ago and therefore were barred by the statute of limitations. White v. Hasson, 2010 U.S. Dist. LEXIS 36698 (W.D.N.C. Mar. 16, 2010).

Claims Expired Prior to Filing of Complaint. —

Heirs and estate filed their complaint against the attorney on July 8, 2005 but the last act or omission by the attorney alleged in the complaint, outside of a July 2002 affidavit, was the attorney’s preparation of the November 1997 will. Since the claims for professional negligence, fraud, and obstruction of justice expired prior to the filing of their complaint in the action under G.S. 1-15(c) and G.S. 1-52(9) , (16), summary judgment was proper as to those claims. Self v. Yelton, 201 N.C. App. 653, 688 S.E.2d 34, 2010 N.C. App. LEXIS 28 (2010).

Statute Not Tolled by Appeal of Underlying Actions in Legal Malpractice Case. —

In a legal malpractice case, where lawyer’s last act in the underlying action was when default judgment occurred, and another lawyer took over the case and appealed the judgment, subsection (c) barred plaintiff insurance company’s action for legal malpractice since plaintiff’s cause of action accrued and the limitations period began to run no later than the date of the default judgment and the statute was not tolled by the appeal of the underlying action. Nationwide Mut. Ins. Co. v. Winslow, 95 N.C. App. 413, 382 S.E.2d 872, 1989 N.C. App. LEXIS 773 (1989).

Statute Not Tolled by Equitable Doctrine of Adverse Domination. —

The equitable doctrine of adverse domination did not toll the statute of repose which applied to bar a negligence action against attorneys by the liquidator of a life insurer. State ex rel. Long v. Petree Stockton, 129 N.C. App. 432, 499 S.E.2d 790, 1998 N.C. App. LEXIS 643 (1998).

Statute Tolled by Voluntary Dismissal Provisions. —

Plaintiff’s claims for medical malpractice were not barred by the three-year statute of limitations of subsection (c) where the refiling of the original state court action in a federal district court invoked the “savings” provision of G.S. 1A-1 , Rule 41(a)(1), pertaining to voluntary dismissal, and thereby tolled the limitations period. Porter v. Groat, 713 F. Supp. 893, 1989 U.S. Dist. LEXIS 6340 (M.D.N.C.), sub. op., 713 F. Supp. 893, 1989 U.S. Dist. LEXIS 6366 (M.D.N.C. 1989).

Ruling of Relation Back Not Required Prior to Voluntary Dismissal. —

Plaintiff did not forfeit her right to prosecute medical malpractice lawsuit and obtain appellate review of previous court orders by failing to seek a ruling of relation back prior to seeking a voluntary dismissal. Bowlin v. Duke Univ., 119 N.C. App. 178, 457 S.E.2d 757, 1995 N.C. App. LEXIS 417 (1995).

Amended Complaint Related Back. —

Because original malpractice complaint gave defendants sufficient notice, amended complaint which added only a Rule 9(j) certification related back to the filing of the original and, thus, fell within the statute of limitations. Brisson v. Santoriello, 134 N.C. App. 65, 516 S.E.2d 911, 1999 N.C. App. LEXIS 666 (1999), aff'd in part, modified, dismissed in part, 351 N.C. 589 , 528 S.E.2d 568, 2000 N.C. LEXIS 354 (2000).

In a medical malpractice case, the trial court erred in granting the doctor and hospital’s motions for judgment on the pleadings and denying the injured party’s motion to set aside the dismissal where the injured party filed the case on the last day of a 120-day extension, filed an amended complaint containing the expert testimony certification, voluntarily dismissed the case and later refiled the complaint; the statute of limitations for malpractice actions under subsection (c) of this section had not run because the original complaint was timely filed and the first action was properly dismissed without prejudice and properly re-filed within a year. Bass v. Durham County Hosp. Corp., 158 N.C. App. 217, 580 S.E.2d 738, 2003 N.C. App. LEXIS 1044 (2003), rev'd, 358 N.C. 144 , 592 S.E.2d 687, 2004 N.C. LEXIS 172 (2004).

Re-filed Complaint Related Back. —

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

Nonsuit Upheld. —

Where there was no evidence that a surgeon attempted to conceal from his patient the fact that a foreign substance had been left in his body at the conclusion of an operation, but to the contrary the surgeon frankly disclosed the facts upon their ascertainment by X-ray less than two years after the operation, nonsuit was properly entered in an action for malpractice instituted more than three years after the operation. Shearin v. Lloyd, 246 N.C. 363 , 98 S.E.2d 508, 1957 N.C. LEXIS 464 (1957) (decided prior to enactment of subsection (c)) .

Fraud by Attorney Not Included. —

Because claims arising out of the performance of or failure to perform professional services based on negligence or breach of contract are in the nature of malpractice claims, they are governed by subsection (c); however, fraud by an attorney is not within the scope of professional services and thus cannot be “malpractice” within the meaning of this statute. Sharp v. Teague, 113 N.C. App. 589, 439 S.E.2d 792, 1994 N.C. App. LEXIS 156 (1994).

This section did not apply to plaintiff financial institution’s claim alleging constructive fraud against attorney, which fell under G.S. 1-56 instead, and failed because there was no evidence that the amount paid defendant for notarizing and witnessing loan documents would have been any different if the documents had not been forged. NationsBank v. Parker, 140 N.C. App. 106, 535 S.E.2d 597, 2000 N.C. App. LEXIS 1092 (2000).

For case holding that evidence negated fraudulent concealment of cause of action against surgeon for technical assault in performing an operation beyond the scope of the one authorized, see Lewis v. Shaver, 236 N.C. 510 , 73 S.E.2d 320, 1952 N.C. LEXIS 599 (1952) (decided prior to enactment of subsection (c)) .

For application of subsection (c) in action against attorney for negligence in advising plaintiff to transfer his property to his children to avoid his second wife’s claim against him for alimony, see Clodfelter v. Bates, 44 N.C. App. 107, 260 S.E.2d 672, 1979 N.C. App. LEXIS 3182 (1979), cert. denied, 299 N.C. 329 , 265 S.E.2d 394, 1980 N.C. LEXIS 1004 (1980).

Limitation for Wrongful Death Action Not Extended. —

Subsection (c) of this section would not apply to extend statute of limitations for plaintiff bringing action for wrongful death based on alleged acts of medical malpractice; plaintiff was required to bring her wrongful death claim within two years of deceased’s death, pursuant to G.S. 1-53(4) . King v. Cape Fear Mem. Hosp., 96 N.C. App. 338, 385 S.E.2d 812, 1989 N.C. App. LEXIS 997 (1989).

Four year statute of repose for medical malpractice actions, G.S. 1-15(c) , applied to wrongful death cases; a wrongful death medical malpractice suit filed within two years of decedent’s death, but more than four years after doctor’s last act, was properly dismissed as untimely. Udzinski v. Lovin, 358 N.C. 534 , 597 S.E.2d 703, 2004 N.C. LEXIS 658 (2004).

Appointment of Guardian Has No Effect on Tolling Provision. —

Appointment of a guardian for a minor does not render the tolling provisions of G.S. 1-17(b) inapplicable to the minor; therefore, where guardian was appointed for minor, and action on behalf of minor for medical malpractice was filed more than five years after that appointment but before minor reached 19, the cause of action was not barred by the statute of limitations. Osborne ex rel. Williams v. Annie Penn Mem. Hosp., 95 N.C. App. 96, 381 S.E.2d 794, 1989 N.C. App. LEXIS 681 (1989).

Appointment of Guardian Ad Litem Removes Disability of Minority And Starts Running of Statute of Limitations. —

As a minor’s legal representative with the authority and directive to act, a guardian ad litem advocates for the legal rights of the minor in the minor’s stead, and the trial court’s appointment of a guardian ad litem on behalf of a minor therefore removes that minor’s disability of minority and starts the running of the statute of limitations; the statute of limitations continues to run even if the guardian ad litem files and then dismisses a legal action. King v. Albemarle Hosp. Auth., 370 N.C. 467 , 809 S.E.2d 847, 2018 N.C. LEXIS 58 (2018).

Because a court-appointed guardian ad litem has the duty to pursue the minor’s claim within the statute of limitations, a failure to do so time bars the claim. King v. Albemarle Hosp. Auth., 370 N.C. 467 , 809 S.E.2d 847, 2018 N.C. LEXIS 58 (2018).

Minor as Claimant in Malpractice Suit. —

A claimant in a professional malpractice case must file the action within the time limitations contained in subsection (c), unless that period expires before the claimant reaches 19 years of age, in which case, claimant may bring the action at any time before he or she reaches age 19, pursuant to G.S. 1-17 . Osborne ex rel. Williams v. Annie Penn Mem. Hosp., 95 N.C. App. 96, 381 S.E.2d 794, 1989 N.C. App. LEXIS 681 (1989).

Failure of Attorney to File Financing Statement. —

An attorney who represents a party in the sale of some of its assets under a security agreement has a duty to file the financing statement after the transaction is closed, which duty continues so long as the filing of the financing statement would protect some interest of his client, and where the attorney fails to file such statement and his client therefore loses his lien upon debtor’s bankruptcy, the statute of limitations begins to run on the date the petition in bankruptcy is filed. Sunbow Indus., Inc. v. London, 58 N.C. App. 751, 294 S.E.2d 409, 1982 N.C. App. LEXIS 2829 (1982).

A cause of action involving malpractice in tax matters does not accrue until the I.R.S. assesses a deficiency. Snipes v. Jackson, 69 N.C. App. 64, 316 S.E.2d 657, 1984 N.C. App. LEXIS 3383 (1984).

Summary Judgment Was Improper in Informed Consent Action. —

Where in a patient’s “informed consent” action, defendant doctor, who was the party moving for summary judgment, offered no evidence on the issue of when plaintiff discovered or should have discovered she was injured as a result of defendant’s alleged act of negligently informing plaintiff of the risks of surgery, the plaintiff was not obligated to come forward with any evidence, and summary judgment for defendant was improper; if moving party fails in his burden of proof, summary judgment is inappropriate regardless of whether opponent responds. Foard v. Jarman, 93 N.C. App. 515, 378 S.E.2d 571, 1989 N.C. App. LEXIS 242 (1989), rev'd, 326 N.C. 24 , 387 S.E.2d 162, 1990 N.C. LEXIS 8 (1990).

Dismissal Improper in Legal Malpractice Action. —

In plaintiff’s action for legal negligence, question as to when last wrongful act of the defendant occurred was at issue; therefore, the action was improperly dismissed pursuant to Rule 12(b)(6). Southeastern Hosp. Supply Corp. v. Clifton & Singer, 110 N.C. App. 652, 430 S.E.2d 470, 1993 N.C. App. LEXIS 578 (1993), aff'd, 335 N.C. 764 , 440 S.E.2d 275, 1994 N.C. LEXIS 108 (1994).

Motion to Dismiss Denied. —

Because the face of the complaint did not clearly reveal that plaintiff borrower’s claims against defendant attorney and law firm accrued before January 30, 2004 (the cut-off date under the three-year statute of limitations), the attorney and law firm’s request to dismiss the remaining claims based on the statute of limitations was denied. Higgins v. Spence & Spence, 2008 U.S. Dist. LEXIS 13096 (E.D.N.C. Feb. 21, 2008).

Continuing Professional Relationship Between Attorney and Client. —

Absent a continuing duty imposed by the contractual relationship or the nature of the services, an attorney has no continuing duty or relationship to a client; thus, there was no on-going relationship between defendant attorney and client for whom he drafted deeds. Jordan v. Crew, 125 N.C. App. 712, 482 S.E.2d 735, 1997 N.C. App. LEXIS 236 (1997).

Because plaintiffs did not allege a continuing professional relationship directly related to the drafting of two deeds, they failed to show a continuing relationship between defendant attorney and plaintiffs’ grandfather; therefore, defendant’s last act, for purposes of the statute of repose, was the drafting and delivery of the deeds and not a later failure to correct the error so that the cause of action was barred under subsection (c). Jordan v. Crew, 125 N.C. App. 712, 482 S.E.2d 735, 1997 N.C. App. LEXIS 236 (1997).

I.In General.

History. —

In 1899 the legislature struck the provisions which made coverture a disability on a par with the others enumerated in this section. Weathers v. Borders, 124 N.C. 610 , 32 S.E. 881, 1899 N.C. LEXIS 100 (1899); Berry v. W. M. Ritter Lumber Co., 141 N.C. 386 , 54 S.E. 278, 1906 N.C. LEXIS 118 (1906). See also, Lafferty v. Young, 125 N.C. 296 , 34 S.E. 444, 1899 N.C. LEXIS 204 (1899); Swift v. Dixon, 131 N.C. 42 , 42 S.E. 458, 1902 N.C. LEXIS 227 (1902).

Constitutionality of Subsection (b). —

The statute requiring an action for malpractice in the performance of professional services for a minor to be brought before the minor attains the age of 19 when the three-year limitation of G.S. 1-15(c) expires before the minor attains the age of 19 does not violate the equal protection clauses of the North Carolina or United States Constitutions on the ground that a person has three years after reaching the age of 18 in which to bring other types of tort actions, since there is a substantial distinction between persons who have malpractice claims and those with other types of tort claims. Hohn v. State, 48 N.C. App. 624, 269 S.E.2d 307, 1980 N.C. App. LEXIS 3255 (1980).

Former Law Unchanged. —

There is nothing in this section which changes the law as it formerly existed. Frederick v. Williams, 103 N.C. 189 , 9 S.E. 298, 1889 N.C. LEXIS 94 (1889).

Applicability of Section to Other Chapters. —

The applicability of this section is not limited to the statutes of limitation found in Chapter 1 of the North Carolina General Statutes. Jefferys v. Tolin, 90 N.C. App. 233, 368 S.E.2d 201, 1988 N.C. App. LEXIS 410 (1988).

The six-month period of limitation of former G.S. 30-2 for dissenting from a will in probate was a statute of limitations which could be tolled by this section for a disability. In re Estate of Owens, 117 N.C. App. 118, 450 S.E.2d 2, 1994 N.C. App. LEXIS 1161 (1994).

The six-month limitation period in G.S. 29-19(b), relating to notice of the claim of an illegitimate child to take from his father’s estate, is a statute of limitation which is subject to being tolled under the provisions of this section. Jefferys v. Tolin, 90 N.C. App. 233, 368 S.E.2d 201, 1988 N.C. App. LEXIS 410 (1988).

Applicability to Products Liability Actions. —

The clear and explicit intent of the legislature, as evidenced by the statutory language of the Products Liability Act itself, is to allow the statute of repose to be tolled if this section applies. Bryant v. Adams, 116 N.C. App. 448, 448 S.E.2d 832, 1994 N.C. App. LEXIS 1047 (1994).

G.S. 1-15(c) and subsection (b) of this section must be construed in pari materia. Osborne ex rel. Williams v. Annie Penn Mem. Hosp., 95 N.C. App. 96, 381 S.E.2d 794, 1989 N.C. App. LEXIS 681 (1989).

This section does not completely eviscerate the statute of repose in the case of minors and others under disability. If a product is over six years old at the time of injury, which would be the time that the claim accrues, than the statute of repose operates as a total bar on that claim; however, if a claim accrues before the six year statute of repose has expired, this section simply operates to extend the time period within which a minor or other with disability may bring suit under Chapter 99B. Therefore, claims accruing after six years will still be barred. Bryant v. Adams, 116 N.C. App. 448, 448 S.E.2d 832, 1994 N.C. App. LEXIS 1047 (1994).

Once the period of limitation begins to run, the subsequent accession of a minor to a right of action cannot toll its running. Davis v. E.I. DuPont DeNemours & Co., 400 F. Supp. 1347, 1974 U.S. Dist. LEXIS 11485 (W.D.N.C. 1974).

Summary judgment was properly granted to a tire manufacturer on the ground that its products liability claims were barred by the six-year statute of repose in G.S. 1-50(a)(6) in that the tire in question was manufactured in 1995, and the accident occurred in 2002; as plaintiffs’ only evidence was that the tire was manufactured in August 1995, the six-year statute of repose could have expired prior to the accrual of the minor plaintiffs’ claims, and plaintiffs did not meet their burden under G.S. 1-17 of showing that the accident occurred less than six years after the tire was initially sold. Robinson v. Bridgestone/Firestone N. Am. Tire, L.L.C., 209 N.C. App. 310, 703 S.E.2d 883, 2011 N.C. App. LEXIS 86 (2011).

Tolling of Statute in Action by Beneficiary Against Trustee. —

An action against a trustee for breach of fiduciary duty is a claim of the beneficiary, not the trust, and common provisions, such as this section, for the tolling of the statute of limitations are available to a beneficiary in an action against his trustee. Fortune v. First Union Nat'l Bank, 87 N.C. App. 1, 359 S.E.2d 801, 1987 N.C. App. LEXIS 2963 (1987), rev'd, 323 N.C. 146 , 371 S.E.2d 483, 1988 N.C. LEXIS 518 (1988).

II.Minors

Effect of Failure of Guardian to Sue. —

Failure of the guardian to institute actions which he has the authority and duty to bring on behalf of his ward is the failure of the ward, entailing the same legal consequences with respect to the bar of the statutes of limitation. Johnson v. Pilot Life Ins. Co., 217 N.C. 139 , 7 S.E.2d 475, 1940 N.C. LEXIS 191 (1940).

The statute of limitations begins to run against an infant or an insane person who is represented by a guardian at the time the cause of action accrues. First-Citizens Bank & Trust Co. v. Willis, 257 N.C. 59 , 125 S.E.2d 359, 1962 N.C. LEXIS 558 (1962).

It is the rule in this State that, except in suits for realty where the legal title is in the ward, the statute of limitations begins to run against an infant who is represented by a general guardian as to any action which the guardian could or should bring at the time the cause of action accrues. Teele v. Kerr, 261 N.C. 148 , 134 S.E.2d 126, 1964 N.C. LEXIS 416 (1964).

As a minor’s legal representative with the authority and directive to act, a guardian ad litem advocates for the legal rights of the minor in the minor’s stead, and the trial court’s appointment of a guardian ad litem on behalf of a minor therefore removes that minor’s disability of minority and starts the running of the statute of limitations; the statute of limitations continues to run even if the guardian ad litem files and then dismisses a legal action. King v. Albemarle Hosp. Auth., 370 N.C. 467 , 809 S.E.2d 847, 2018 N.C. LEXIS 58 (2018).

Because a court-appointed guardian ad litem has the duty to pursue the minor’s claim within the statute of limitations, a failure to do so time bars the claim. King v. Albemarle Hosp. Auth., 370 N.C. 467 , 809 S.E.2d 847, 2018 N.C. LEXIS 58 (2018).

As to effect of failure of guardian having right to sue to do so, see also Cross v. Craven, 120 N.C. 331 , 26 S.E. 940, 1897 N.C. LEXIS 66 (1897).

Removal of Disability Triggers Running of Statute of Limitations. —

Language of “Notwithstanding the provisions of subsection (a)” refers to the reduced time period to bring an action, and like subsection (a), subsection (b) still allows the minor to reach adulthood before requiring him or her to pursue his or her medical malpractice claim, assuming his or her disability is otherwise uninterrupted; removal of the disability either by reaching the age of majority or by appointment of a guardian ad litem triggers the running of the statute of limitations. King v. Albemarle Hosp. Auth., 370 N.C. 467 , 809 S.E.2d 847, 2018 N.C. LEXIS 58 (2018).

If an infant or insane person has no guardian at the time the cause of action accrues, then the statute begins to run upon the appointment of a guardian or upon the removal of the disability as provided by this section, whichever shall occur first. First-Citizens Bank & Trust Co. v. Willis, 257 N.C. 59 , 125 S.E.2d 359, 1962 N.C. LEXIS 558 (1962); Teele v. Kerr, 261 N.C. 148 , 134 S.E.2d 126, 1964 N.C. LEXIS 416 (1964).

Effect of Mother’s Suit as Next Friend for Daughter. —

For purposes of the North Carolina law of limitations, the filing of a complaint in federal district court in West Virginia by mother as next friend for her minor daughter did not constitute the appointment of the mother as a guardian ad litem charged with the duty of bringing the suit, and therefore did not start the running of the statute of limitations. Genesco, Inc. v. Cone Mills Corp., 604 F.2d 281, 1979 U.S. App. LEXIS 12849 (4th Cir. 1979).

Running of Statute Against Beneficiaries When It Runs Against Trustee. —

Where a trust has a claim against a third party, and the trustee is competent to sue, a statute of limitations will be deemed to have run against all beneficiaries, regardless of minority, when it has run against the trustee. Fortune v. First Union Nat'l Bank, 87 N.C. App. 1, 359 S.E.2d 801, 1987 N.C. App. LEXIS 2963 (1987), rev'd, 323 N.C. 146 , 371 S.E.2d 483, 1988 N.C. LEXIS 518 (1988).

Running of Statute Against Minor Beneficiaries When It Runs Against Administratrix. —

Where the statute of limitation had run against the administratrix, it had also run against the minor beneficiaries of a wrongful death settlement. Boomer v. Caraway, 116 N.C. App. 723, 449 S.E.2d 215, 1994 N.C. App. LEXIS 1123 (1994), aff'd, rejected in part, 342 N.C. 186 , 463 S.E.2d 230, 1995 N.C. LEXIS 543 (1995).

Running of Statute Where No Final Account Filed. —

When no final account has been filed, the statute begins to run from the arrival of the ward at age. Self v. Shugart, 135 N.C. 185 , 47 S.E. 484, 1904 N.C. LEXIS 22 (1904).

Action on Judgment Secured During Infancy. —

This section permits an individual to bring an action on a judgment secured during his infancy by a next friend within the time limited by G.S. 1-47(1) , i.e., ten years after he becomes twenty-one years old. Teele v. Kerr, 261 N.C. 148 , 134 S.E.2d 126, 1964 N.C. LEXIS 416 (1964).

Childhood Sexual Abuse.—

Appellate court held that plaintiff’s claims of childhood sexual abuse were wholly precluded from relitigation by the doctrine of res judicata, and that the SAFE Child Act did not serve to revive them. Because it was clear any new claims brought in the 2020 complaint could have been adjudicated in a prior action, having arisen from the same factual assertions, res judicata applied to all claims brought in the 2020 complaint. Doe v. Roman Catholic Diocese of Charlotte, 2022-NCCOA-287, 2022 N.C. App. LEXIS 313 (May 3, 2022).

Dismissal of Civil Rights Claim Denied. —

Motion for dismissal of an action under 42 U.S.C. § 1983 would be denied where (1) juvenile was 14 years old when the alleged incident took place, (2) juvenile was now only 17 years of age, and (3) pursuant to subdivision (a)(1) of this section, the statute of limitations had not begun to run against the juvenile. Simmons v. Justice, 87 F. Supp. 2d 524, 2000 U.S. Dist. LEXIS 2945 (W.D.N.C. 2000).

Action Not Barred. —

Summary judgment pursuant to G.S. 1A-1 , N.C. R. Civ. P. 56(c) was improperly granted in the youngest child’s claim against the father alleging fraud, among other things, because the action was not barred by res judicata and collateral estoppel, and the youngest child filed the action within three years of when the child reached the age of majority, as required under G.S. 1-52 and G.S. 1-17(a). Beall v. Beall, 156 N.C. App. 542, 577 S.E.2d 356, 2003 N.C. App. LEXIS 188 (2003).

Action Held Barred. —

Summary judgment pursuant to G.S. 1A-1 , N.C. R. Civ. P. 56(c) was properly granted in the older child’s claim against the father alleging fraud, among other things; because the claim accrued when the child was a minor, the child was required under G.S. 1-17(a) and G.S. 1-52 to file the claim within three years of reaching majority, which the child failed to do, as the summons and complaint, which began the lawsuit pursuant to G.S. 1A-1 , N.C. R. Civ. P. 3, were not issued until after the deadline had passed. Beall v. Beall, 156 N.C. App. 542, 577 S.E.2d 356, 2003 N.C. App. LEXIS 188 (2003).

Court of appeals erred in reversing an order dismissed a child’s medical malpractice claims as time barred because the child filed his action after the statute of limitations expired, and the appointment of a guardian ad litem provided the child a legal representative and removed his disability of minority; the removal of the disability eliminates the tolling and starts the running of the applicable three-year statute of limitations for medical malpractice actions. King v. Albemarle Hosp. Auth., 370 N.C. 467 , 809 S.E.2d 847, 2018 N.C. LEXIS 58 (2018).

III.Insanity

Detention in Asylum by Defendant’s Wrongful Act. —

Where plaintiff’s cause of action was based upon alleged wrongful act of defendant in causing plaintiff’s detention in an insane asylum, as to defendant plaintiff was non sui juris for the period during which he was detained, and the statute of limitations did not run against plaintiff’s cause of action during that period. Jackson v. Parks, 216 N.C. 329 , 4 S.E.2d 873, 1939 N.C. LEXIS 158 (1939).

Test of Disability. —

Although the disability statute which operates to toll the statute of limitations, subsection (a) of this section, provides for tolling for persons who are “insane” when their “cause of action” accrues, under the decisional and statutory law of this state, the appropriate test is one of mental competence to manage one’s own affairs. Cox v. Jefferson-Pilot Fire & Cas. Co., 80 N.C. App. 122, 341 S.E.2d 608, 1986 N.C. App. LEXIS 2130 , cert. denied, 317 N.C. 702 , 347 S.E.2d 38, 1986 N.C. LEXIS 2478 (1986).

IV.Incompetency

Post-Traumatic Stress Syndrome. —

Plaintiff’s repression of memories and post-traumatic stress syndrome suffered as a result of her grandmother’s alleged sexual, physical, and emotional abuse rendered plaintiff “incompetent”, thereby tolling the statute of limitations so that summary judgment for defendant was improper. Leonard v. England, 115 N.C. App. 103, 445 S.E.2d 50, 1994 N.C. App. LEXIS 559 (1994).

Test for whether incompetency exists. —

The appropriate test for establishing an adult incompetent is one of mental competence to manage one’s own affairs. State Farm Fire & Cas. Co. v. Darsie, 161 N.C. App. 542, 589 S.E.2d 391, 2003 N.C. App. LEXIS 2257 (2003).

Where defendants had sufficient notice from allegations in plaintiff’s complaint that he may have been prevented from filing his clams due to mental disability as he alleged that he suffered several mental breakdowns, that he was diagnosed with post traumatic stress disorder, and that due to his mental illness he was rendered incompetent within the meaning of G.S. 35A-1101(7) , the applicable statute of limitations was tolled. Soderlund v. North Carolina Sch. of Arts, 125 N.C. App. 386, 481 S.E.2d 336, 1997 N.C. App. LEXIS 107 (1997).

Education of Handicapped Act. —

Where mentally handicapped woman reached age 18 on February 9, 1984, and her guardian ad litem filed suit against the Board of Education in 1986 seeking reimbursement for the depletion of her health insurance benefits used to pay for her education under the Education of the Handicapped Act, the handicapped woman’s cause of action was not time barred as she timely filed after attaining her majority and having a guardian appointed; district court properly found G.S. 1-52(2) was tolled by handicapped woman’s infancy and incompetency pursuant to this section. Shook ex rel. Shook v. Gaston County Bd. of Educ., 882 F.2d 119, 1989 U.S. App. LEXIS 12177 (4th Cir. 1989), cert. denied, 493 U.S. 1093, 110 S. Ct. 1166, 107 L. Ed. 2d 1069, 1990 U.S. LEXIS 743 (1990).

Tolling of Statute for Employee. —

Employee specifically alleged that after an alleged sexual assault the employee was placed on medical leave by a psychiatrist, suffered a nervous breakdown, and could not manage the employee’s own affairs; thus, the employee sufficiently alleged that the employee was an incompetent adult and was under a disability pursuant to G.S. 1-17(a) such that the staute of limitations was tolled. Fox v. Sara Lee Corp., 210 N.C. App. 706, 709 S.E.2d 496, 2011 N.C. App. LEXIS 639 (2011).

Tolling of Statute for Incompetent Widow. —

Where widow was incompetent and without a guardian at all times during the administration of her husband’s estate all statutes of limitations for civil actions under Chapter 1 of the General Statutes applicable to her were tolled by this section until the removal of her disability or the appointment of a guardian. In re Estate of Owens, 117 N.C. App. 118, 450 S.E.2d 2, 1994 N.C. App. LEXIS 1161 (1994).

Tolling of Statute for Incompetent Daughter. —

The statute of limitations was tolled for woman who was not yet adjudicated incompetent although, in fact, she clearly was. Fox v. Health Force, Inc., 143 N.C. App. 501, 547 S.E.2d 83, 2001 N.C. App. LEXIS 298 , cert. denied, 354 N.C. 216 , 553 S.E.2d 912, 2001 N.C. LEXIS 1017 (2001).

Incompetency Not Shown. —

The plaintiff failed to establish that he was an “incompetent adult” within the meaning of the statute where his only allegation regarding his incompetency was that his mental condition “caused him to be incapable of understanding his legal rights, making or communicating important decisions about those rights or bringing a lawsuit,” but he was able to arrange for places to live, signed leases, cooked, went shopping, held several jobs, attended college at two institutions, obtained and renewed driver’s licenses from three states, drove vehicles, owned farmland, traveled and lived in foreign countries, produced a ballet, and created music. Soderlund v. Kuch, 143 N.C. App. 361, 546 S.E.2d 632, 2001 N.C. App. LEXIS 313 (2001).

While there was competent evidence that a wife of an insurance policyholder was extremely and unfortunately injured by the accident, in and out of hospitals, and on and off of many painkillers, there was also evidence that she was able to name an attorney-in-fact to handle her insurance claims; therefore, the wife did not show sufficient competent evidence that her injury made her incapable of managing her own affairs to allow a disability tolling of the fraud statute of limitations under G.S. 1-52(9) . State Farm Fire & Cas. Co. v. Darsie, 161 N.C. App. 542, 589 S.E.2d 391, 2003 N.C. App. LEXIS 2257 (2003).

Pleading Not Required. —

Plaintiff was not required to plead mental disability in avoidance of the affirmative defense of statute of limitations. Dunkley v. Shoemate, 121 N.C. App. 360, 465 S.E.2d 319, 1996 N.C. App. LEXIS 16 (1996).

V.Malpractice

Appointment of Guardian Has No Effect on Tolling Provision. —

Appointment of a guardian for a minor does not render the tolling provisions of subsection (b) inapplicable to the minor; therefore, where guardian was appointed for minor and action on behalf of minor for medical malpractice was filed more than five years after that appointment but before minor reached 19, the cause of action was not barred by the statute of limitations. Osborne ex rel. Williams v. Annie Penn Mem. Hosp., 95 N.C. App. 96, 381 S.E.2d 794, 1989 N.C. App. LEXIS 681 (1989).

A claimant in a professional malpractice case must file the action within the time limitations contained in G.S. 1-15(c) , unless that period expires before the claimant reaches 19 years of age, in which case claimant may bring the action at any time before he or she reaches age 19. Osborne ex rel. Williams v. Annie Penn Mem. Hosp., 95 N.C. App. 96, 381 S.E.2d 794, 1989 N.C. App. LEXIS 681 (1989).

Plaintiff’s claim based on medical malpractice was barred by the three-year statute of limitations of G.S. 1-15(c) and the provisions of subsection (b) of this section where the last act of negligence by defendants allegedly occurred in 1962 when plaintiff was four years old and plaintiff filed his claim one day before his twentieth birthday, there being no merit to plaintiffs’ contention that subsection (b) does not apply to an action brought by a plaintiff in his own behalf. Hohn v. State, 48 N.C. App. 624, 269 S.E.2d 307, 1980 N.C. App. LEXIS 3255 (1980).

VI.Adverse Possession

Section Relates to True Title. —

Adverse possession relates only to the true title, and the exemptions in the statute as to disability can apply only to one having, by virtue of this title, a right of entry or of action. Berry v. W. M. Ritter Lumber Co., 141 N.C. 386 , 54 S.E. 278, 1906 N.C. LEXIS 118 (1906).

Disability Beginning After Commencement of Running of Statute. —

Where the statute of limitations begins to run in favor of one in adverse possession against owner, and the owner thereafter dies leaving heirs who are minors, their disability of infancy does not affect the operation of the statute, since the disability is subsequent to commencement of the running of the statute. Battle v. Battle, 235 N.C. 499 , 70 S.E.2d 492, 1952 N.C. LEXIS 425 (1952).

Effect of Disability Continuing Throughout Life. —

If the disability continued during life, and for a period thereafter sufficient to complete the prescribed time of seven years, the title would be perfected in the occupant, subordinate only to a right in the heir to sue for the recovery of the land for the space of three years next after his death. The running of the statute against the action and to consummate the title would be concurrent after the decease of the grantor. Ellington v. Ellington, 103 N.C. 54 , 9 S.E. 208, 1889 N.C. LEXIS 73 (1889).

Adverse Possession. —

Seven years’ adverse possession under color of title is no bar to an action of ejectment where the person entitled to commence the same is an infant at the time the title to the land descends to him and sues within three years next after full age. Clayton v. Rose, 87 N.C. 106 , 1882 N.C. LEXIS 24 (1882).

If land is held adversely to an insane person for such length of time as would bar his recovery if sane, such insane person, or those claiming under him, must commence an action within three years after the disability of insanity is removed, or their rights to recover will be barred. Warlick v. Plonk, 103 N.C. 81 , 9 S.E. 190, 1889 N.C. LEXIS 77 (1889).

A cause of action to set aside a deed executed by a person who is non compos mentis must be brought within seven years from the date of execution, or within three years next after the removal of the disability, whichever period expires later. Emanuel v. Emanuel, 78 N.C. App. 799, 338 S.E.2d 620, 1986 N.C. App. LEXIS 2010 (1986).

I.In General.

Effect of 1979 Amendment. —

The addition in 1979 of the second paragraph to this section provides, in effect, that this section is not applicable to toll a statute of limitations if a defendant is amenable to long-arm jurisdiction under G.S. 1-75.4 . Tierney v. Garrard, 124 N.C. App. 415, 477 S.E.2d 73, 1996 N.C. App. LEXIS 1075 (1996), aff'd, 347 N.C. 258 , 490 S.E.2d 237, 1997 N.C. LEXIS 653 (1997).

The plain language of the second paragraph of this section is unambiguous and does not limit the exemption from its tolling provisions to those defendants amenable only to personal process. Tierney v. Garrard, 124 N.C. App. 415, 477 S.E.2d 73, 1996 N.C. App. LEXIS 1075 (1996), aff'd, 347 N.C. 258 , 490 S.E.2d 237, 1997 N.C. LEXIS 653 (1997).

Purpose of Section. —

One of the purposes of this section is to prevent defendants from having the benefit of the lapse of time, i.e., the statute of limitations, while they remain beyond the limits of the State and allow their debts to remain unpaid, it not being the policy of the State to drive its citizens to seek their legal remedies abroad. Duke Univ. v. Chestnut, 28 N.C. App. 568, 221 S.E.2d 895, 1976 N.C. App. LEXIS 2757 (1976).

The purpose of this section is to prevent defendants from having the benefit of the statute of limitation while they permit past due debts to remain unpaid or other causes of action against them to remain undischarged, and keep beyond the limits of the State and the jurisdiction of its courts, thus preventing the person having the right to sue from doing so. Merchants & Planters Nat'l Bank v. Appleyard, 238 N.C. 145 , 77 S.E.2d 783, 1953 N.C. LEXIS 440 (1953).

The general purpose of this section, taken in connection with the statute of limitation, is to give the person having an accrued cause of action or judgment, as prescribed, opportunity substantially during the whole of the lapse of the time against him to bring his action or enforce his judgment. Armfield v. Moore, 97 N.C. 34 , 2 S.E. 347, 1887 N.C. LEXIS 105 (1887).

The words “any person” are employed to designate the person to be affected and embraced by the section; they are very comprehensive, and there is nothing in the section’s scope or purpose that excludes nonresidents. Armfield v. Moore, 97 N.C. 34 , 2 S.E. 347, 1887 N.C. LEXIS 105 (1887); Merchants & Planters Nat'l Bank v. Appleyard, 238 N.C. 145 , 77 S.E.2d 783, 1953 N.C. LEXIS 440 (1953).

“The times herein limited” means the time prescribed elsewhere in the Code or in statutes amending or passed as substitutes therefor. The plain intent of the statute is to put nonresidents on the same footing as residents. Armfield v. Moore, 97 N.C. 34 , 2 S.E. 347, 1887 N.C. LEXIS 105 (1887); Williams v. Iron Belt Bldg. & Loan Ass'n, 131 N.C. 267 , 42 S.E. 607, 1902 N.C. LEXIS 284 (1902); Hill v. Lindsay, 210 N.C. 694 , 188 S.E. 406, 1936 N.C. LEXIS 203 (1936).

This statutory provision prescribes three distinct cases in which the statute will not operate as a bar because of the continuous lapse of the time prescribed next after the cause of action accrued or judgment was rendered or docketed: (1) Where the debtor was out of the State at the time the cause of action accrued or the judgment was rendered or docketed. This case may apply alike to a resident or nonresident debtor. In such a case time does not begin to lapse in his favor until he returns to the State, not simply on a hasty visit of a day or two, at long intervals, but for the purpose of residence. And if, after such returns, he departs from the State for the purpose of residence out of it, or to sojourn out of it for a year or more, the time of his absence will not be allowed in his favor; it will be subtracted from the time that would have been so allowed if he had remained in the State. (2) When, after the cause of action accrued or the judgment was rendered or docketed, the debtor, either a resident or nonresident of the State, departs from and resides out of it, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action or the enforcement of such judgment. (3) When, after the cause of action has accrued or judgment has been rendered or docketed, the debtor departs from the State, and remains continually absent for the space of one year or more, the time of his absence shall not be allowed in his favor. Armfield v. Moore, 97 N.C. 34 , 2 S.E. 347, 1887 N.C. LEXIS 105 (1887); Arthur v. Henry, 157 N.C. 393 , 73 S.E. 206, 1911 N.C. LEXIS 63 (1911).

The statute of limitations is suspended in the following cases: (1) When the person against whom a cause of action exists becomes a nonresident, whether he remains continuously absent for a year or occasionally visits the State; (2) When such person retains his residence, but is absent from the State continuously for one year or more. Lee v. McKoy, 118 N.C. 518 , 24 S.E. 210, 1896 N.C. LEXIS 87 (1896).

Effect of Absence of Debtor Before Accrual of Action. —

Where a debtor is out of the State at the time the cause of action accrues, the statute of limitation does not begin to run until he returns to this State for the purpose of making it his residence. Armfield v. Moore, 97 N.C. 34 , 2 S.E. 347, 1887 N.C. LEXIS 105 (1887).

Nature of Return to State. —

The “return to the State” specified by this section as necessary to put the statute in motion is a return with a view to residence, not a casual appearance in the State, passing through it, or even making a visit here. Lee v. McKoy, 118 N.C. 518 , 24 S.E. 210, 1896 N.C. LEXIS 87 (1896).

When a person becomes a nonresident it is not necessary that he remain continuously out of the State one year to stop the running of the statute, nor would occasional visits to the State put the statute in motion. Lee v. McKoy, 118 N.C. 518 , 24 S.E. 210, 1896 N.C. LEXIS 87 (1896).

Short Annual Visits Held Insufficient to Start Statute. —

Where debtor was a nonresident of this State but was here on a visit of a day or two each year, such visits would not have the effect of putting the statute in motion. Armfield v. Moore, 97 N.C. 34 , 2 S.E. 347, 1887 N.C. LEXIS 105 (1887).

This section is applicable to actions in rem as well as actions in personam, no exception being made. Love v. West, 169 N.C. 13 , 84 S.E. 1048, 1915 N.C. LEXIS 135 (1915).

Fact that nonresident debtor has property within the State will not affect this section, which suspends the operation of the statute of limitations for the period during which the person against whom the demand is made is out of the State. Grist v. Williams, 111 N.C. 53 , 15 S.E. 889, 1892 N.C. LEXIS 120 (1892).

This section is not applicable after the statute of limitation has run. Southern Ry. v. Mayes, 113 F. 84, 1902 U.S. App. LEXIS 3931 (4th Cir.), cert. denied, 186 U.S. 483, 22 S. Ct. 942, 46 L. Ed. 1260, 1902 U.S. LEXIS 2223 (1902).

This section is not applicable if a defendant is subject to long-arm jurisdiction. Stokes v. Wilson & Redding Law Firm, 72 N.C. App. 107, 323 S.E.2d 470, 1984 N.C. App. LEXIS 4007 (1984).

The “borrowing provision” of this section is not applicable if a defendant is subject to long-arm jurisdiction under G.S. 1-75.4 . Laurent v. USAIR, Inc., 124 N.C. App. 208, 476 S.E.2d 443, 1996 N.C. App. LEXIS 994 (1996).

Personal jurisdiction over defendants under G.S. 1-75.4 , standing alone, is not sufficient to place plaintiff’s action outside this section. Plaintiff must also be a resident of this State at the time his action originally accrued in order to maintain an action in the courts of this State which is barred by the laws of the jurisdiction in which it arose. Glynn v. Stoneville Furn. Co., 85 N.C. App. 166, 354 S.E.2d 552, 1987 N.C. App. LEXIS 2560 (1987).

When a nonresident defendant is amenable to process there is no need for a tolling statute. Duke Univ. v. Chestnut, 28 N.C. App. 568, 221 S.E.2d 895, 1976 N.C. App. LEXIS 2757 (1976) (decided prior to enactment of second paragraph of this section) .

Application of a tolling statute such as this section when defendant has at all times been subject to the service of process under G.S. 1-75.4(5) is inimical to the general purposes of statutes of limitations. Such statutes exist to eliminate the injustice which may result from the assertion of stale claims by providing a reasonable but definite time within which a claim must be prosecuted in the courts or be forever barred. Duke Univ. v. Chestnut, 28 N.C. App. 568, 221 S.E.2d 895, 1976 N.C. App. LEXIS 2757 (1976) (decided prior to enactment of second paragraph of this section) .

No Conflict with Long-Arm Statute. —

Fact that there is little need to give effect to a tolling statute when a nonresident is amenable to service that will confer personal jurisdiction over him does not place the tolling statute in hopeless conflict with the long-arm jurisdictional statute. Full effect can be given to both of the statutes. Duke Univ. v. Chestnut, 28 N.C. App. 568, 221 S.E.2d 895, 1976 N.C. App. LEXIS 2757 (1976) (decided prior to enactment of second paragraph of this section) .

G.S. 1-105 and G.S. 1-105.1 Not in Conflict with Section. —

G.S. 1-105 and G.S. 1-105.1 , providing for substitute service of a nonresident motorist by service upon the Commissioner of Motor Vehicles, are not in conflict with and do not repeal this section, even though there is no need for a tolling statute when a nonresident defendant is amenable to process. Travis v. McLaughlin, 29 N.C. App. 389, 224 S.E.2d 243, 1976 N.C. App. LEXIS 2487 , cert. denied, 290 N.C. 555 , 226 S.E.2d 513, 1976 N.C. LEXIS 1118 (1976).

Right of Foreign Corporations to Plead Statute. —

As to right of foreign corporations to plead the statute of limitations when required by statute to maintain an agent in the State for service of process, see Volivar v. Richmond Cedar Works, 152 N.C. 656 , 68 S.E. 200, 1910 N.C. LEXIS 340 (1910).

A corporation can actually be present in the State by continuously doing business in North Carolina through its agents, even though place of incorporation and principal place of business are in foreign states. Bobbitt v. Tannewitz, 538 F. Supp. 654, 1982 U.S. Dist. LEXIS 12442 (M.D.N.C. 1982).

Where the seller has continuously done business in North Carolina since plaintiff’s claims accrued, the seller has been sufficiently “present” in the State to warrant the protection of the statutes of limitations. Bobbitt v. Tannewitz, 538 F. Supp. 654, 1982 U.S. Dist. LEXIS 12442 (M.D.N.C. 1982).

As to general rule regarding application of statutes of this character to actions pending at the time they take effect, provided the actions have not been barred by a previous limitation, see Cox v. Brown, 51 N.C. 100 , 1858 N.C. LEXIS 118 (1858).

Burden of proof is upon plaintiff to show that defendant comes within the purview of this section. Burkhimer v. Gealy, 39 N.C. App. 450, 250 S.E.2d 678, 1979 N.C. App. LEXIS 2505 , cert. denied, 297 N.C. 298 , 254 S.E.2d 918, 1979 N.C. LEXIS 1299 (1979). See also, Savage v. Currin, 207 N.C. 222 , 176 S.E. 569, 1934 N.C. LEXIS 424 (1934).

Where plaintiff’s affidavits did not even suggest that defendant left North Carolina at any time, this section could not apply. Sunamerica Fin. Corp. v. Bonham, 328 N.C. 254 , 400 S.E.2d 435, 1991 N.C. LEXIS 106 (1991).

Suspension of Operation of G.S. 1-53 . —

The existence of the conditions enumerated in this section will suspend the operation of G.S. 1-53 . Williams v. Iron Belt Bldg. & Loan Ass'n, 131 N.C. 267 , 42 S.E. 607, 1902 N.C. LEXIS 284 (1902).

Enforcement of Resulting Trust. —

Where a cause of action to enforce a resulting trust existed for more than 10 years, but after subtracting the length of time the trustee thereof had been out of the State the elapsed time was less than 10 years, then under this section the cause of action was not barred by the 10-year statute. Miller v. Miller, 200 N.C. 458 , 157 S.E. 604, 1931 N.C. LEXIS 359 (1931).

Proceedings against bail in civil actions are barred, unless commenced within three years after judgment against the principal, notwithstanding the principal may have left the State in the meanwhile. Albemarle Steam Nav. Co. v. Williams, 111 N.C. 35 , 15 S.E. 877, 1892 N.C. LEXIS 116 (1892).

II.Causes of Action Arising Outside State

Purpose of Proviso in First Paragraph. —

The legislature intended the proviso added by the 1955 amendment to be a limited borrowing statute, operating to bar prosecution in this State of all claims barred either in the state of their origin or in this State. Little v. Stevens, 267 N.C. 328 , 148 S.E.2d 201, 1966 N.C. LEXIS 1040 (1966).

The proviso in this section is not a limitation upon the tolling provisions of the statute, but is a limited borrowing statute, operating to bar prosecution in this State of all claims barred either in the state of their origin or in this State. Broadfoot v. Everett, 270 N.C. 429 , 154 S.E.2d 522, 1967 N.C. LEXIS 1370 (1967).

The 1955 amendment was designed (1) to clarify the law and (2) to bar stale out-of-state claims. To treat the proviso merely as a limitation on the tolling portion of the statute would accomplish neither of these purposes. Giving the language of the proviso its ordinary meaning, it is a limited borrowing statute which bars all stale foreign claims. Little v. Stevens, 267 N.C. 328 , 148 S.E.2d 201, 1966 N.C. LEXIS 1040 (1966).

The second sentence of this section, the “borrowing statute” element, limits the effect of the first sentence by applying the foreign state’s statute of limitation in those situations where the foreign statute would bar the action; in other words, the “borrowing statute” will prevent a plaintiff from retaining the right to sue indefinitely. Cochrane v. Turner, 582 F. Supp. 971, 1983 U.S. Dist. LEXIS 12126 (W.D.N.C. 1983).

Certain Claims Barred by Proviso. —

Treating the proviso as a limited borrowing statute, no action barred in the state of origin may be litigated here. Little v. Stevens, 267 N.C. 328 , 148 S.E.2d 201, 1966 N.C. LEXIS 1040 (1966).

Unless They Originally Accrued in Favor of Resident. —

This section now bars all stale foreign claims unless they originally accrued in favor of a resident of North Carolina. Broadfoot v. Everett, 270 N.C. 429 , 154 S.E.2d 522, 1967 N.C. LEXIS 1370 (1967).

Ancillary Administrator Is Not Resident to Whom Wrongful Death Claim Accrues. —

The fact that an action for wrongful death is brought by an ancillary administrator appointed in this State does not make the action one accruing to a resident of this State within the meaning of the proviso to this section. Broadfoot v. Everett, 270 N.C. 429 , 154 S.E.2d 522, 1967 N.C. LEXIS 1370 (1967).

Wrongful Death Claim Barred Where It Arose Is Also Barred in This State. —

Where, at the time a wrongful death action was instituted here, it was barred in Pennsylvania where it arose, it was also barred in North Carolina. Broadfoot v. Everett, 270 N.C. 429 , 154 S.E.2d 522, 1967 N.C. LEXIS 1370 (1967).

Right to Maintain Action After Barred in Other Jurisdiction. —

After a cause of action has been barred in the jurisdiction where it arose, only a plaintiff who was a resident of North Carolina at the time the cause of action originally accrued has the right to maintain an action in the courts of North Carolina. Laurent v. USAIR, Inc., 124 N.C. App. 208, 476 S.E.2d 443, 1996 N.C. App. LEXIS 994 (1996).

Right of Nonresident to Litigate Claim Not Barred Where It Arose. —

The courts of this State are open to a nonresident plaintiff to enforce a claim on a cause of action that is not barred in the jurisdiction where such cause of action arose, where the debtor has not been a resident of this State for the statutory time necessary to bar the action. This section tolls the statute in such cases where neither the plaintiff nor the defendant is a resident of this State at the time of the institution of the action and never was, as well as where the obligation arose out of the State and the debtor has not resided in the State for a time sufficient to bar the action by the law of this State. Merchants & Planters Nat'l Bank v. Appleyard, 238 N.C. 145 , 77 S.E.2d 783, 1953 N.C. LEXIS 440 (1953) (decided prior to addition of proviso in 1955) .

Action Based on Foreign Statute Which Itself Contains Limitation. —

When an action is based on a foreign statute which creates a cause or right of action and the statute itself contains a limitation on the time within which the action may be brought, the life of the right of action is limited by that provision and not by local statutes of limitation. Rios v. Drennan, 209 F. Supp. 927, 1962 U.S. Dist. LEXIS 3572 (E.D.N.C. 1962).

Claim Arising Out-of-State Against Nonresident. —

This section has been construed to mean that if the cause of action arises in another state against an out-of-state defendant, then the statute of limitation does not begin to run until the nonresident defendant comes into this State so that he or she is subject to the personal jurisdiction of this State’s courts. Cochrane v. Turner, 582 F. Supp. 971, 1983 U.S. Dist. LEXIS 12126 (W.D.N.C. 1983).

I.In General

Section as Exception to General Rule. —

This section is an exception to the general rule that when the statutes of limitation once begin to run nothing can stop them. Winslow v. Benton, 130 N.C. 58 , 40 S.E. 840, 1902 N.C. LEXIS 14 (1902); Matthews v. Peterson, 150 N.C. 134 , 63 S.E. 721, 1909 N.C. LEXIS 6 (1909); Hodge v. Perry, 255 N.C. 695 , 122 S.E.2d 677, 1961 N.C. LEXIS 6 70 (1961).

This section is an enabling and not a disabling statute, and applies only in those cases where, but for its interposition, a claim would be barred. Benson v. Bennett, 112 N.C. 505 , 17 S.E. 432, 1893 N.C. LEXIS 239 (1893); Redmond v. Pippen, 113 N.C. 90 , 18 S.E. 50, 1893 N.C. LEXIS 25 (1893); Geitner v. Jones, 176 N.C. 542 , 97 S.E. 494, 1918 N.C. LEXIS 294 (1918); Humphrey v. Stephens, 191 N.C. 101 , 131 S.E. 383, 1926 N.C. LEXIS 14 (1926).

And Enlarges Time for Bringing Action. —

This section is intended to enlarge and extend the time within which an action may be brought, and not to suspend the operation of the statute, which continues to run. Irvin v. Harris, 184 N.C. 547 , 114 S.E. 818, 1922 N.C. LEXIS 122 (1922). See also, Coppersmith v. Wilson, 107 N.C. 31 , 12 S.E. 77, 1890 N.C. LEXIS 5 (1890); Benson v. Bennett, 112 N.C. 505 , 17 S.E. 432, 1893 N.C. LEXIS 239 (1893).

But this section has no application where the bar attached before death. Daniel v. Laughlin, 87 N.C. 433 , 1882 N.C. LEXIS 92 (1882); Vaughan v. Hines, 87 N.C. 445 , 1882 N.C. LEXIS 95 (1882); Hughes v. Boone, 114 N.C. 54 , 19 S.E. 63, 1894 N.C. LEXIS 13 (1894); Grady v. Wilson, 115 N.C. 344 , 20 S.E. 518, 1894 N.C. LEXIS 240 (1894); Parker v. Harden, 121 N.C. 57 , 28 S.E. 20, 1897 N.C. LEXIS 161 (1897); Copeland v. Collins, 122 N.C. 619 , 30 S.E. 315, 1898 N.C. LEXIS 316 (1898); Winslow v. Benton, 130 N.C. 58 , 40 S.E. 840, 1902 N.C. LEXIS 14 (1902); Humphrey v. Stephens, 191 N.C. 101 , 131 S.E. 383, 1926 N.C. LEXIS 14 (1926).

If a personal representative is appointed to administer an estate before the expiration of the statute of limitations, G.S. 1-22 allows the time limit within which to file an action against the estate to be extended according to G.S. 28A-19-3 . Shaw v. Mintz, 151 N.C. App. 82, 564 S.E.2d 593, 2002 N.C. App. LEXIS 674 , rev'd, 356 N.C. 603 , 572 S.E.2d 782, 2002 N.C. LEXIS 1257 (2002).

G.S. 1-22 will allow the time limit within which to file an action against the estate to be extended according to G.S. 28A-19-3 . Wright v. Smith, 151 N.C. App. 121, 564 S.E.2d 613, 2002 N.C. App. LEXIS 681 (2002).

This section makes a distinction between claims in favor of a decedent’s estate and claims against a decedent’s estate. Ingram v. Smith, 16 N.C. App. 147, 191 S.E.2d 390, 1972 N.C. App. LEXIS 1658 , cert. denied, 282 N.C. 304 , 192 S.E.2d 195, 1972 N.C. LEXIS 939 (1972).

To What Limitations Section Is Applicable. —

The section only applies to the limitations prescribed in the Code of Civil Procedure. Hall v. Gibbs, 87 N.C. 4 , 1882 N.C. LEXIS 2 (1882).

Application to Wrongful Death Action. —

This section is of no avail to a plaintiff in a wrongful death action where she does not qualify and file suit within that time limit. Johnson v. Wachovia Bank & Trust Co., 22 N.C. App. 8, 205 S.E.2d 353, 1974 N.C. App. LEXIS 2216 (1974).

Application to Securities Action. —

Since G.S. 78A-56 is a statute of limitations and not a statute of repose, in action seeking recession of purchase of securities the two-year statute of limitations provided for in G.S. 78A-56 (f) was tolled by operation of this section, because plaintiffs brought their claim within the one year extension provided by this section. Walker v. Montclaire Hous. Partners, 736 F. Supp. 1358, 1990 U.S. Dist. LEXIS 5984 (M.D.N.C. 1990).

Contract as to Time for Suit Not Suspended by Section. —

A reasonable stipulation in a contract of carriage with a railroad company for an interstate shipment of goods as to the time wherein suit might be brought for loss or damage was a part of the contract between the parties, and being made without exception, was not suspended by this section. Thigpen v. East Carolina Ry., 184 N.C. 33 , 113 S.E. 562, 1922 N.C. LEXIS 9 (1922).

As to former practice under which there was no extension of time to prevent the bar of the statutes from becoming complete as is provided in this section, see Hawkins v. Savage, 75 N.C. 133 , 1876 N.C. LEXIS 223 (1876); Bruner v. Threadgill, 88 N.C. 361 , 1883 N.C. LEXIS 87 (1883); Patterson v. Wadsworth, 89 N.C. 407 , 1883 N.C. LEXIS 258 (1883).

II.Claims in Favor of Estate

Effect of this section, following death of judgment creditor, was to give one year’s time from such death to the decedent’s representative to bring an action, if otherwise it would have been barred before such year had expired. Benson v. Bennett, 112 N.C. 505 , 17 S.E. 432, 1893 N.C. LEXIS 239 (1893).

Where there was more than one year after death of creditor before time for the bringing of suit expired, this section had no place. Hughes v. Boone, 114 N.C. 54 , 19 S.E. 63, 1894 N.C. LEXIS 13 (1894).

Time of Administrator’s Appointment Is Immaterial. —

Actions upon claims in favor of an estate of a decedent must be brought within one year of his death, without regard to when administrator was appointed. Coppersmith v. Wilson, 107 N.C. 31 , 12 S.E. 77, 1890 N.C. LEXIS 5 (1890).

Reason for Counting Time Period from Death of Decedent. —

Time is counted from the death of the decedent, in respect to claims in favor of the estate, because the law does not encourage remission in those entitled to administrations. Coppersmith v. Wilson, 107 N.C. 31 , 12 S.E. 77, 1890 N.C. LEXIS 5 (1890); Ingram v. Smith, 16 N.C. App. 147, 191 S.E.2d 390, 1972 N.C. App. LEXIS 1658 , cert. denied, 282 N.C. 304 , 192 S.E.2d 195, 1972 N.C. LEXIS 939 (1972).

III.Claims Against Estate

Editor’s Note. —

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

As to construction and application of former provisions of the second sentence of this section prior to its amendment in 1977, see Mauney v. Holmes, 87 N.C. 428 , 1882 N.C. LEXIS 91 (1882); Dunlap v. Hendley, 92 N.C. 115 , 1885 N.C. LEXIS 163 (1885); Smith v. Brown, 101 N.C. 347 , 7 S.E. 890, 1888 N.C. LEXIS 5 7 (1888); Brittain v. Dickson, 104 N.C. 547 , 10 S.E. 701, 1889 N.C. LEXIS 235 (1889); Coppersmith v. Wilson, 107 N.C. 31 , 12 S.E. 77, 1890 N.C. LEXIS 5 (1890); Brawley v. Brawley, 109 N.C. 524 , 14 S.E. 73, 1891 N.C. LEXIS 259 (1891); Benson v. Bennett, 112 N.C. 505 , 17 S.E. 432, 1893 N.C. LEXIS 239 (1893); Burgwyn v. Daniel, 115 N.C. 115 , 20 S.E. 462 (1894); Winslow v. Benton, 130 N.C. 58 , 40 S.E. 840, 1902 N.C. LEXIS 14 (1902); Matthews v. Peterson, 150 N.C. 134 , 63 S.E. 721, 1909 N.C. LEXIS 6 (1909); Fisher v. Ballard, 164 N.C. 326 , 80 S.E. 239, 1913 N.C. LEXIS 55 (1913); Irvin v. Harris, 182 N.C. 656 , 109 S.E. 871, 1921 N.C. LEXIS 293 (1921); Prentzas v. Prentzas, 260 N.C. 101 , 131 S.E.2d 678, 1963 N.C. LEXIS 6 36 (1963).

A county’s general claim against the estate of a recipient of old age assistance to recover for such assistance is governed by this section. Mecklenburg County v. Lee, 18 N.C. App. 239, 196 S.E.2d 814, 1973 N.C. App. LEXIS 1824 (1973).

Action Not Barred. —

Action filed on October 20, 2000, two days after qualification of deceased driver’s personal representative, for personal injuries arising out of an automobile accident that occurred on June 27, 1997, was not barred by G.S. 1-52 , where deceased died on November 7, 1997, at which time the three year limitations period had not yet expired, as under G.S. 28A-18-1 plaintiff’s cause of action survived his death, and thus, pursuant to G.S. 1-22 , plaintiff was permitted to commence a cause of action against deceased’s personal representative, provided that either the action was brought within the time specified for the presentation of claims in G.S. 28A-19-3 , or that notice of the claim upon which the action was based was presented to the personal representative within the time specified for the presentation of claims in G.S. 28A-19-3 . The personal representative’s failure to establish in the record that she complied with G.S. 28A-19-3(a) regarding general notice to creditors precluded her from relying upon the statute of limitations as a bar; moreover, under G.S. 28A-14-1(a), the absolute earliest “deadline” date which could have been specified by the personal representative in the general notice to creditors was January 18, 2001, three months from the day of the first publication or posting of such notice. Mabry v. Huneycutt, 149 N.C. App. 630, 562 S.E.2d 292, 2002 N.C. App. LEXIS 271 (2002).

IV.Filing and Admission of Claim

Editor’s Note. —

The cases cited below were decided prior to enactment of the 1977 amendment to the final sentence of this section, which substituted “its validity is admitted in writing by him” for “admitted by him.”.

Last Sentence of Section Not Retroactive. —

The last sentence of this section (which was added in 1881) applied only to those claims that were filed at the time of the passage of the act and were not then barred. It could not apply to those barred when the act became effective. Whitehurst v. Dey, 90 N.C. 542 , 1884 N.C. LEXIS 272 (1884).

Meaning of “Filed”. —

The term “filed” signifies that the claim is to be exhibited, for inspection, to the personal representative, for his admission or rejection. It is not required of the creditor to part with the possession of the evidence of his claim. Hinton v. Pritchard, 126 N.C. 8 , 35 S.E. 127, 1900 N.C. LEXIS 176 (1900).

Notice to the executor for information is the prime purpose of the statute in requiring the claim to be filed, and seems to be all that is necessary for his purpose, until he is ready to make a final settlement. Hinton v. Pritchard, 126 N.C. 8 , 35 S.E. 127, 1900 N.C. LEXIS 176 (1900).

Filing of Claim as Protection Against Running of Statute. —

If a judgment creditor of a deceased judgment debtor wishes to protect himself against the running of the statute of limitations as against the debt, he must file his claim with the personal representative of the deceased. Williams v. Johnson, 230 N.C. 338 , 53 S.E.2d 277, 1949 N.C. LEXIS 642 (1949).

Application to Heirs. —

Since the amendment of 1881, the heir is as much barred by the filing of the claim within the prescribed time and its admission by the personal representative as he would be by the latter submitting to a judgment. Hall v. Gibbs, 87 N.C. 4 , 1882 N.C. LEXIS 2 (1882); Woodlief v. Bragg, 108 N.C. 571 , 13 S.E. 211, 1891 N.C. LEXIS 111 (1891).

What Constitutes Sufficient Filing. —

It is a sufficient “filing” when the claim is presented within the proper time to the personal representative and he acknowledges the validity of the debt. The creditor has done his part when he has presented it to the administrator with sufficient certainty as to the nature and amount of the debt. Stonestreet v. Frost, 123 N.C. 640 , 31 S.E. 836, 1898 N.C. LEXIS 115 (1898); Justice v. Gallert, 131 N.C. 393 , 42 S.E. 850, 1902 N.C. LEXIS 302 (1902).

Silence as Admission. —

Where a claim was presented in the form of a bill of particulars, and the representative refused an explicit admission or denial, plaintiff had the right to deem its acceptance without remark as arresting the running of the statute. Flemming v. Flemming, 85 N.C. 127 , 1881 N.C. LEXIS 220 (1881).

Filing of Petition to Make Assets as Indicative of Admission. —

Where personal representative did not deny the correctness of the claim filed with him in proper time, but filed his petition to make assets to pay it, this was strong proof that he admitted it. Woodlief v. Bragg, 108 N.C. 571 , 13 S.E. 211, 1891 N.C. LEXIS 111 (1891).

Partial payment by the personal representative, without objection was an unequivocal act from which an admission of the justice of the claim could be inferred. Hinton v. Pritchard, 126 N.C. 8 , 35 S.E. 127, 1900 N.C. LEXIS 176 (1900).

Where plaintiff never presents his claim or any proof of it, but simply announces its amount, without response from the representative, the running of the statute is not arrested under this section. Flemming v. Flemming, 85 N.C. 127 , 1881 N.C. LEXIS 220 (1881).

Effect of Admission. —

The admission of the validity of a claim by an administrator, where presented within proper time, dispenses with any formal proof thereof. Justice v. Gallert, 131 N.C. 393 , 42 S.E. 850, 1902 N.C. LEXIS 302 (1902).

Claims which are not barred and are presented to the administrator and admitted by him pursuant to this section need not be put in suit to prevent the bar of the statute pending the administration, nor can the heirs plead the statute as to them. Turner v. Shuffler, 108 N.C. 642 , 13 S.E. 243, 1891 N.C. LEXIS 124 (1891).

Where notes matured less than three years prior to the date of death of the maker, so that an action on the notes was not then barred by the three-year statute of limitation, the filing of claim and the admission of it, in accordance with this section, prevented the claim from being barred. Lister v. Lister, 222 N.C. 555 , 24 S.E.2d 342, 1943 N.C. LEXIS 373 (1943).

Filing and Admission of Claim Held Sufficient. —

Where an administrator, knowing that his appointment was at the instance and solicitation of judgment creditors so that they might make collection immediately upon appointment, with memorandum of the judgment in hand, investigated and ascertained that the judgment had not been paid, and thereafter instituted proceedings to sell the lands of intestate to pay the judgment, claim on the judgment was filed and admitted by the administrator within the meaning of this section. Rodman v. Stillman, 220 N.C. 361 , 17 S.E.2d 336, 1941 N.C. LEXIS 538 (1941).

Mere notice to an executor of a claim against the decedent’s estate, received without comment or approval by the executor, was not a filing of the claim within the meaning of this section, but where, after such notice, the executor carried the item as a debt on the books of the estate and reported it to the clerk as a debt owed by the estate, the executor’s approval would be inferred, and the statute would not operate as a bar. Ashley Horne Corp. v. Creech, 205 N.C. 55 , 169 S.E. 794, 1933 N.C. LEXIS 459 (1933).

Exhibition to the administrator by the sheriff, within one year of the date of administration, of an execution issued in favor of the county against the intestate, which the administrator admitted was correct but did not pay for want of assets, was a sufficient “filing” under this section, rendering unnecessary an action to prevent the bar of statute of limitations. Stonestreet v. Frost, 123 N.C. 640 , 31 S.E. 836, 1898 N.C. LEXIS 115 (1898).

I.In General

The English Statute. —

The original statute of limitation (21 Jas. I, ch. 16) had no provision as to new promises and acknowledgments. The court made the law on this subject and made it apply to all causes of action that rested on a promise. Royster v. Farrell, 115 N.C. 306 , 20 S.E. 475, 1894 N.C. LEXIS 233 (1894).

This section is mandatory. Fleming v. Staton, 74 N.C. 203 , 1876 N.C. LEXIS 50 (1876).

Effect upon Prior Law. —

This section does not change the character or quality of the acknowledgment or new promise theretofore required to repel the bar of the statute of limitations in an action on contract, except that the new promise should be “in some writing signed by the party to be charged.” Phillips v. Giles, 175 N.C. 409 , 95 S.E. 772, 1918 N.C. LEXIS 83 (1918); Peoples Bank & Trust Co. v. Tar River Lumber Co., 221 N.C. 89 , 19 S.E.2d 138, 1942 N.C. LEXIS 398 (1942).

The substituted statute after a fixed time bars the cause of action itself, and does not, as before, obstruct the remedy merely. McDonald v. Dickson, 87 N.C. 404 , 1882 N.C. LEXIS 89 (1882).

Retroactive Effect. —

This section has no application where the cause of action had accrued upon the new as well as the old cause. Faison v. Bowden, 74 N.C. 43 , 1876 N.C. LEXIS 9 (1876).

This section is merely a rule of evidence enacted to prevent fraud and perjury. Royster v. Farrell, 115 N.C. 306 , 20 S.E. 475, 1894 N.C. LEXIS 233 (1894).

A judgment is not a “contract” within the meaning of this section, because a cause of action on contract or tort loses its identity when merged in a judgment, and thereafter a new cause of action arises out of the judgment. McDonald v. Dickson, 87 N.C. 404 , 1882 N.C. LEXIS 89 (1882).

Hence This Section Is Not Applicable to Judgments. —

The terms of this section as to written acknowledgments, etc., are confined to actions on contracts and are not applicable to judgments. McDonald v. Dickson, 87 N.C. 404 , 1882 N.C. LEXIS 89 (1882).

Authorization or Ratification by Surety. —

If the original borrower makes a new promise to pay the debt in writing or actually makes a partial payment after his or her original promise to pay is broken but before the statute of limitations has run, then the statute begins to run anew from the date of this payment or acknowledgment as against a surety who authorizes or ratifies it. Fleet Real Estate Funding Corp. v. Blackwelder, 83 N.C. App. 27, 348 S.E.2d 611, 1986 N.C. App. LEXIS 2641 (1986).

II.Acknowledgment or New Promise

Statute Not Tolled Without a Writing. —

The running of the statute of limitations is not tolled by the promise of defendant to pay where there is neither allegation nor evidence of any writing as is required by this section to repel the bar of the statute of limitations in an action on a contract. Lattimore v. Powell, 15 N.C. App. 522, 190 S.E.2d 288, 1972 N.C. App. LEXIS 1955 (1972).

A new promise to pay fixes a new date from which the statute of limitations runs, but such promise, to be binding, must be in writing as required by this section. Pickett v. Rigsbee, 252 N.C. 200 , 113 S.E.2d 323 (1960). In accord with second paragraph in the main volume. See Norris v. Belcher, 86 N.C. App. 459, 358 S.E.2d 79, 1987 N.C. App. LEXIS 2728 (1987).

A new promise to pay, if not in writing, cannot defeat the operation of the statute of limitation. Raby v. Stuman, 127 N.C. 463 , 37 S.E. 476, 1900 N.C. LEXIS 108 (1900).

Absent Partial Payment. —

The bar of the statute of limitations may be overcome by proof of a promise or acknowledgment, but the proof must be in writing, unless the new promise is one that the law implies from a part payment. Hill v. Hilliard & Co., 103 N.C. 34 , 9 S.E. 639, 1889 N.C. LEXIS 68 (1889); Royster v. Farrell, 115 N.C. 306 , 20 S.E. 475, 1894 N.C. LEXIS 233 (1894).

Oral Assertion of Claim Is Ineffectual. —

The oral assertion of a claim to an administrator who remains silent, even if the silence should be construed an admission, is ineffectual because it is not in writing. Flemming v. Flemming, 85 N.C. 127 , 1881 N.C. LEXIS 220 (1881).

As to exclusion of parol evidence that a new promise was made, see Christmas v. Haywood, 119 N.C. 130 , 25 S.E. 861, 1896 N.C. LEXIS 250 (1896).

Elements Necessary for a Valid Promise. —

The promise (1) must be in writing; (2) extend to the whole debt (but see Pope v. Andrews, 90 N.C. 401 (1884)); (3) must be to pay money and not something else of value; and (4) must be unconditional. Greenleaf v. Norfolk S.R.R., 91 N.C. 33 , 1884 N.C. LEXIS 10 (1884); Edwin Bates & Co. v. E.B. Herren & Co., 95 N.C. 388 , 1886 N.C. LEXIS 278 (1886); Taylor v. Miller, 113 N.C. 340 , 18 S.E. 504, 1893 N.C. LEXIS 78 (1893); Wells v. Hill, 118 N.C. 900 , 24 S.E. 771, 1896 N.C. LEXIS 152 (1896); Bryant v. Kellum, 209 N.C. 112 , 182 S.E. 708, 1935 N.C. LEXIS 40 (1935).

In order to revive a debt which is barred by the statute of limitation, there must be an express unconditional promise to pay the same, in writing, or a written, definite and unqualified acknowledgment of the debt as a subsisting obligation, signed by the debtor, etc., and from which the law will imply a promise to pay. Phillips v. Giles, 175 N.C. 409 , 95 S.E. 772, 1918 N.C. LEXIS 83 (1918).

The promise must be identical and must be between the original parties, by the same man; further, when the original contract is made with one person and the promise relied on to repel the statute is made with another, the plaintiff in the action, the cause of action is the new promise, and it must be declared on, and this new promise must be in writing. Fleming v. Staton, 74 N.C. 203 , 1876 N.C. LEXIS 50 (1876); Pool v. Bledsoe, 85 N.C. 1 , 1881 N.C. LEXIS 194 (1881).

The promise must be made to the creditor himself. Parker v. Shuford, 76 N.C. 219 , 1877 N.C. LEXIS 212 (1877); Faison v. Bowden, 76 N.C. 425 , 1877 N.C. LEXIS 277 (1877).

Or to an attorney or agent for the creditor. Kirby v. Mills, 78 N.C. 124 , 1878 N.C. LEXIS 184 (1878); Hussey v. Kirkman, 95 N.C. 63 , 1886 N.C. LEXIS 205 (1886).

The promise must be express. Cooper v. Jones, 128 N.C. 40 , 38 S.E. 28, 1901 N.C. LEXIS 325 (1901).

And must be clear and positive. Hussey v. Kirkman, 95 N.C. 63 , 1886 N.C. LEXIS 205 (1886).

And certain in its terms. Long v. Oxford, 104 N.C. 408 , 10 S.E. 525, 1889 N.C. LEXIS 215 (1889).

Conditional Expressions of Willingness to Pay. —

Where defendant sent to plaintiff supplier a letter which stated “we plan to pay” and “we expect to pay” the debt, these conditional expressions of defendant’s willingness to pay the plaintiff were not sufficiently precise to amount to an unequivocal acknowledgement of the original amounts owed and were insufficient to repel the statute of limitations. American Multimedia, Inc. v. Freedom Distrib., Inc., 95 N.C. App. 750, 384 S.E.2d 32, 1989 N.C. App. LEXIS 875 (1989).

Promise Must Amount to New or Continuing Contract. —

This section provides that the statute is only waived by acknowledgment or new promise, which amounts to “a new or continuing contract.” George W. Helm Co. v. Griffin, 112 N.C. 356 , 16 S.E. 1023, 1893 N.C. LEXIS 218 (1893).

Acknowledgment of Debt Is Insufficient. —

The new promise must be distinct and specific, and a mere acknowledgment of the debt, though implying a promise to pay, is not sufficient. Faison v. Bowden, 76 N.C. 425 , 1877 N.C. LEXIS 277 (1877); Riggs v. Roberts, 85 N.C. 151 , 1881 N.C. LEXIS 227 (1881).

Intention to Renew Debt Must Be Manifest. —

There must be such facts and circumstances as to show that the debtor recognized a present subsisting liability and manifested an intention to assume or renew the obligation. This means that the acknowledgment of a debt, which would be sufficient to repel the statute, must manifest an intention to renew the debt as strong and convincing as if there had been a direct promise to pay it. Simonton v. Clark, 65 N.C. 525 , 1871 N.C. LEXIS 159 (1871); Wells v. Hill, 118 N.C. 900 , 24 S.E. 771, 1896 N.C. LEXIS 152 (1896).

Letter to Creditor Referring to Principal Owed. —

A letter to a creditor (plaintiff) written by a debtor (defendant), which did not state the amount owed but referred to the principal amount, constituted a new promise to pay the existing debt and tolled the statute of limitations for the plaintiff’s claim pursuant to this section. Coe v. Highland Sch. Assocs. Ltd. Partnership, 125 N.C. App. 155, 479 S.E.2d 257, 1997 N.C. App. LEXIS 17 (1997).

Promise Must Be Made Within Statutory Limit. —

The three-year statute of limitations bars a simple action for debt, and where a letter relied on as arresting the running of the statute is written more than three years before the commencement of the action it is ineffective. Smith v. Gordon, 204 N.C. 695 , 169 S.E. 634, 1933 N.C. LEXIS 240 (1933).

When Promise Implied. —

Where the debtor has, by a signed written instrument, unqualifiedly and definitely acknowledged the debt as his subsisting obligation, the law will imply a promise to pay it, and it is sufficient to repel the bar of the statute of limitations, unless there is something in the writing to repel such implication. Phillips v. Giles, 175 N.C. 409 , 95 S.E. 772, 1918 N.C. LEXIS 83 (1918). See also, Smith v. Leeper, 32 N.C. 86 , 1849 N.C. LEXIS 56 (1849); McRae v. Leary, 46 N.C. 91 , 1853 N.C. LEXIS 82 (1853); Cecil v. Henderson, 121 N.C. 244 , 28 S.E. 481, 1897 N.C. LEXIS 215 (1897).

Instances in Which Promise Not Implied. —

An unaccepted offer to pay a debt by a conveyance of land is not such a recognition of subsisting liabilities as in law will imply a promise to pay. Wells v. Hill, 118 N.C. 900 , 24 S.E. 771, 1896 N.C. LEXIS 152 (1896).

An unaccepted offer to discharge a bond by a conveyance of land will not be held to imply a promise to pay. Riggs v. Roberts, 85 N.C. 151 , 1881 N.C. LEXIS 227 (1881).

A promissory note that was barred by the statute of limitations would not be revived by an offer to pay in Confederate currency or bank bills. Simonton v. Clark, 65 N.C. 525 , 1871 N.C. LEXIS 159 (1871).

Section Inapplicable to Action Based on Failure of Equipment to Conform to Original Warranty. —

The statute providing that a new promise must be in writing and signed by the party to be charged in order to start the running of the statute of limitations was inapplicable where plaintiff’s action was based upon failure of equipment to conform with original warranty and not upon any new promise by seller. Styron v. Loman-Garrett Supply Co., 6 N.C. App. 675, 171 S.E.2d 41, 1969 N.C. App. LEXIS 1258 (1969).

Acknowledgment or Promise Held Sufficient to Remove Bar of Statute. —

A written acknowledgment, or a new promise, certain in its terms, or which can be made certain, is sufficient to repel the operations of the statute of limitations under this section. It follows that a mere vague declaration of an intention to pay an undefined amount, without reference to anything that could make it certain, would not be sufficient, but an admission that “the parties are yet to account, and are willing to account and pay the balance then ascertained” would be. Long v. Oxford, 104 N.C. 408 , 10 S.E. 525, 1889 N.C. LEXIS 215 (1889).

The words “I propose to settle,” written in answer to a letter demanding payment of a note barred by the lapse of time, amounted to an acknowledgment or new promise sufficient to take the case out of the operation of the statute of limitations. Taylor v. Miller, 113 N.C. 340 , 18 S.E. 504, 1893 N.C. LEXIS 78 (1893).

Where a suit had already been commenced to recover an amount alleged to be due upon account, and defendant set up the statutory bar as a defense, but wrote a letter to plaintiff’s attorney stating that, if he would take $500.00 in satisfaction, judgment might go against him at court, the letter was an admission and assumption of the debt in the specified amount of $500.00, and operated to remove the bar to recovery. Pope v. Andrews, 90 N.C. 401 , 1884 N.C. LEXIS 242 (1884). But see, Wells v. Hill, 118 N.C. 900 , 24 S.E. 771, 1896 N.C. LEXIS 152 (1896).

A paper-writing signed by a parent, certifying that she owed her daughter a sum of money, in a stated amount, for moneys she had borrowed from her at various times, and stating that the daughter was to have a certain sum of money from her estate, giving her reasons, was sufficiently definite to imply a promise to pay the amount of the debt and to repel the bar of the statute of limitations. Phillips v. Giles, 175 N.C. 409 , 95 S.E. 772, 1918 N.C. LEXIS 83 (1918).

A new note embracing an old indebtedness of the maker is a sufficient writing signed by the parties to be charged to bring the old indebtedness within the operation of this section. Irvin v. Harris, 182 N.C. 647 , 109 S.E. 867, 1921 N.C. LEXIS 292 (1921).

Acknowledgment or Promise Held Insufficient. —

Where a debtor wrote to his creditors declining proffered credit because he was unable to pay what he already owed them, which was barred by the statute, but expressing his confidence in his ability to pay whatever he might contract for in the future, the bar of the statute was not removed. George W. Helm Co. v. Griffin, 112 N.C. 356 , 16 S.E. 1023, 1893 N.C. LEXIS 218 (1893).

A writing stating “I am going to pay it as soon as I can” was conditioned upon ability to pay and was therefore insufficient. Cooper v. Jones, 128 N.C. 40 , 38 S.E. 28, 1901 N.C. LEXIS 325 (1901).

In order for a letter signed by the debtor to remove the bar of the statute of limitations it must contain an express, unconditional promise to pay or a definite, unqualified acknowledgment of the debt as a subsisting obligation; and a letter acknowledging the debt at the time defendant left plaintiff’s city, but claiming that it had been canceled by the creditor’s action in selling the debtor’s goods of a value greatly in excess of the debt, was not such an acknowledgment of a subsisting obligation as would repel the statutory bar. Smith v. Gordon, 204 N.C. 695 , 169 S.E. 634, 1933 N.C. LEXIS 240 (1933).

Client was entitled to summary judgment based on the statute of limitations under G.S. 1-52(1) because a business consultant failed to show that the client in its e-mails to the consultant manifested a definite and unqualified intention to pay a contractual debt under G.S. 1-26 so that the time for the consultant to collect the contractual debt was extended by the e-mails. Andrus v. IQMax, Inc., 190 N.C. App. 426, 660 S.E.2d 107, 2008 N.C. App. LEXIS 900 (2008).

As to former law, see Hughes v. Edwards, 22 U.S. 489, 6 L. Ed. 142, 1824 U.S. LEXIS 383 (1824); McBride v. Gray, 44 N.C. 420 , 1853 N.C. LEXIS 206 (1853); Brown v. Becknall, 58 N.C. 423 , 1860 N.C. LEXIS 267 (1860); Faison v. Bowden, 72 N.C. 405 , 1875 N.C. LEXIS 241 (1875); Ray v. Pearce, 84 N.C. 485 , 1881 N.C. LEXIS 113 (1881); Riggs v. Roberts, 85 N.C. 151 , 1881 N.C. LEXIS 227 (1881); Simmons v. Ballard, 102 N.C. 105 , 9 S.E. 495, 1889 N.C. LEXIS 18 (1889).

III.Effect of Partial Payment

History. —

It should be observed that the effect of partial payment stopping the statute is not of statutory origin. It was not in the English statute of James I and 9 Geo. IV did nothing more than recognize the common-law right. Thus it originated with the courts and its application depends upon the reasoning in such decisions. This is equally true in North Carolina for this section merely recognizes the right, leaving the application of the principles to the courts as has always been the case. See Battle v. Battle, 116 N.C. 161 , 21 S.E. 177, 1895 N.C. LEXIS 196 (1895).

Thus the effect of this section is to leave the law as it was prior to the adoption of the Code of Civil Procedure as regards the effect of a partial payment in removing the bar of the statute of limitations. See State Nat'l Bank v. Harris, 96 N.C. 118 , 1 S.E. 459, 1887 N.C. LEXIS 24 (1887); Kilpatrick v. Kilpatrick, 187 N.C. 520 , 122 S.E. 377, 1924 N.C. LEXIS 328 (1924).

The principle that making a payment on a note repels the statute is not altered by the provisions of this section, for it expressly provides that “this section does not alter the effect of any payment of principal or interest.” The decisions treating of this provision hold that the effect of this clause is to leave the law as it was prior to the adoption of this section as regards the effect of a partial payment in removing the bar of the statute of limitations. Smith v. Davis, 228 N.C. 172 , 45 S.E.2d 51, 1947 N.C. LEXIS 590 (1947).

This section dispenses with a writing where partial payment is made, because the payment is in effect a written promise. McDonald v. Dickson, 87 N.C. 404 , 1882 N.C. LEXIS 89 (1882).

But Debtor Must Intend Thereby to Acknowledge Debt. —

The general principle on which part payment takes a case out of the statute is that the party paying intended by it to acknowledge and admit the greater debt to be due. If it was not in the mind of the debtor to do this, then the statute, having begun to run, will not be stopped by reason of such payment. Cashmar-King Supply Co. v. Dowd & King, 146 N.C. 191 , 59 S.E. 685, 1907 N.C. LEXIS 23 (1907).

Partial payment starts the statute running anew only when it is made under such circumstances as will warrant the clear inference that the debtor recognizes the debt as existing and his willingness, or at least his obligation, to pay the balance. Battle v. Battle, 116 N.C. 161 , 21 S.E. 177 (1895). See also, Lester Piano Co. v. Loven, 207 N.C. 96 , 176 S.E. 290 (1934). In accord with second paragraph in the main volume. See Norris v. Belcher, 86 N.C. App. 459, 358 S.E.2d 79, 1987 N.C. App. LEXIS 2728 (1987).

Payment made in contemplation of an agreed compromise will not repel the bar of the statute of limitations as to the balance of the debt. Cashmar-King Supply Co. v. Dowd & King, 146 N.C. 191 , 59 S.E. 685, 1907 N.C. LEXIS 23 (1907).

Partial payment voluntarily made on judgment does not remove statutory bar. McDonald v. Dickson, 87 N.C. 404 , 1882 N.C. LEXIS 89 (1882).

Application of Existing Liability to Debt. —

The fact that the maker of a note had a claim against the holder, which the holder endorsed as a credit on the note without the assent of the maker, would not be such a partial payment as would rebut the statute of limitations, but an agreement to apply one existing liability to another would be such a partial payment as would stop the operation of the statute, even though the endorsement was never actually made on the note. State Nat'l Bank v. Harris, 96 N.C. 118 , 1 S.E. 459, 1887 N.C. LEXIS 24 (1887).

An account of transactions between two persons, to be mutual, when kept by only one of them, must be with the knowledge and concurrence of the other, so as to make a credit given to such other repel the bar of the statute of limitations. Cashmar-King Supply Co. v. Dowd & King, 146 N.C. 191 , 59 S.E. 685, 1907 N.C. LEXIS 23 (1907).

Where an assignment for the benefit of creditors conferred no power on the trustee, as agent of the debtor, to do any act to waive the statute or to express a willingness or intention to pay the debt after it became otherwise barred, a partial payment made by the trustee on a note of the debtor would not arrest the running or remove the bar of the statute of limitations. Battle v. Battle, 116 N.C. 161 , 21 S.E. 177, 1895 N.C. LEXIS 196 (1895).

Burden of Proving Payment. —

The burden is upon the plaintiff to show that a partial payment was made at such a time as to save the debt from the operation of the statute. Riggs v. Roberts, 85 N.C. 151 , 1881 N.C. LEXIS 227 (1881).

Instruction Held Erroneous. —

Where the running of the statute of limitations would have otherwise barred an action upon an account, and there was evidence tending to show that a credit thereon was agreed to by the creditor and debtor within the three-year period, the effect of this credit to repel the bar related to the time of the agreement made and effected, and an instruction that made it depend upon the time of the debt incurred for which the credit was given was reversible error to the plaintiff’s prejudice. Kilpatrick v. Kilpatrick, 187 N.C. 520 , 122 S.E. 377, 1924 N.C. LEXIS 328 (1924).

As to time for which statute starts anew, see Riggs v. Roberts, 85 N.C. 151 , 1881 N.C. LEXIS 227 (1881); State Nat'l Bank v. Harris, 96 N.C. 118 , 1 S.E. 459, 1887 N.C. LEXIS 24 (1887); Battle v. Battle, 116 N.C. 161 , 21 S.E. 177, 1895 N.C. LEXIS 196 (1895); Cashmar-King Supply Co. v. Dowd & King, 146 N.C. 191 , 59 S.E. 685, 1907 N.C. LEXIS 23 (1907); Kilpatrick v. Kilpatrick, 187 N.C. 520 , 122 S.E. 377, 1924 N.C. LEXIS 328 (1924).

IV.Effect of Request Not to Sue

Plea of Limitations Precluded After Delay Caused by Debtor’s Request and Promise. —

Where delay in bringing suit is caused by a request of defendant or his attorney and his promise to pay the debt and not to avail himself of the plea of the statute, he will not be allowed to plead the statute, as it would be against equity and good conscience. Joyner v. Massey, 97 N.C. 148 , 1 S.E. 702, 1887 N.C. LEXIS 128 (1887). See also, Barcroft & Co. v. Roberts & Co., 91 N.C. 363 , 1884 N.C. LEXIS 78 (1884), aff'd, Barcroft & Co. v. G. M. Roberts & Co., 92 N.C. 249 , 1885 N.C. LEXIS 192 (1885).

Notwithstanding this section, when a creditor has delayed action at the request of the debtor, under his promise, express or implied, to pay the debt and not to plead the statute of limitations, the courts, in the exercise of their equitable jurisdiction, will not permit the debtor to plead the lapse of time, and the creditor may bring his action within the statutory time after such promise and request for delay even though they were not in writing. Cecil v. Henderson, 121 N.C. 244 , 28 S.E. 481, 1897 N.C. LEXIS 215 (1897).

If plaintiff was prevented from bringing his action during the statutory period by such conduct on the part of the defendant as makes it inequitable to him to plead the statute, or by reason of any agreement not to do so, he will not be permitted to defeat plaintiff’s action by interposing the plea. Tomlinson v. Bennett, 145 N.C. 279 , 59 S.E. 37, 1907 N.C. LEXIS 289 (1907); State v. United States Fid. & Guar. Co., 176 N.C. 598 , 97 S.E. 490, 1918 N.C. LEXIS 306 (1918).

On Grounds of Equitable Estoppel. —

In giving effect to requests not to sue and promises not to plead the statute, the courts proceed upon the idea of an equitable estoppel, holding that it would be against good conscience and encourage fraud to permit the debtor to repudiate them when by his contract he has lulled the creditor into a feeling of security and has induced him to delay bringing action. Daniel v. Board of Comm'rs, 74 N.C. 494 , 1876 N.C. LEXIS 130 (1876); Haymore v. Commissioners of Yadkin, 85 N.C. 268 , 1881 N.C. LEXIS 251 (1881).

Request Without Promise Not to Plead Insufficient. —

It is essential not only that there shall be a new promise and a request for delay, but there must be a promise not to plead the statute if delay is given. Hill v. Hilliard & Co., 103 N.C. 34 , 9 S.E. 639, 1889 N.C. LEXIS 68 (1889); Cecil v. Henderson, 121 N.C. 244 , 28 S.E. 481, 1897 N.C. LEXIS 215 (1897).

A request not to sue will not stay the statute of limitation, but it must be an agreement not to plead it. Raby v. Stuman, 127 N.C. 463 , 37 S.E. 476, 1900 N.C. LEXIS 108 (1900).

But Request and Promise Need Not Be in Writing. —

The request not to sue and promises not to plead the statute of limitations need not be in writing. Cecil v. Henderson, 121 N.C. 244 , 28 S.E. 481, 1897 N.C. LEXIS 215 (1897); State v. United States Fid. & Guar. Co., 176 N.C. 598 , 97 S.E. 490, 1918 N.C. LEXIS 306 (1918).

Running of Statute Not Arrested. —

A simple admission by executor of the correctness of a claim against testator’s estate, and a verbal promise to pay same out of the assets, prior to the 1881 amendment of G.S. 1-22 , would not arrest the running of the statute of limitations, where there was no proof that the creditor refrained from suing at the request of the executor or that there was any agreement for indulgence. Whitehurst v. Dey, 90 N.C. 542 , 1884 N.C. LEXIS 272 (1884).

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 N.C. LEXIS 251 (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 N.C. LEXIS 1442 (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 N.C. App. LEXIS 1983 (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 N.C. App. LEXIS 1983 (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 N.C. App. LEXIS 1983 (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 N.C. LEXIS 261 (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 N.C. LEXIS 128 (1891); Cameron v. Hicks, 141 N.C. 21 , 53 S.E. 728, 1906 N.C. LEXIS 61 (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 N.C. LEXIS 61 (1906).

As to effect of disability on adverse possession, see Clayton v. Rose, 87 N.C. 106 , 1882 N.C. LEXIS 24 (1882); Stone v. Conder, 46 N.C. App. 190, 264 S.E.2d 760, 1980 N.C. App. LEXIS 2821 (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 N.C. App. LEXIS 2010 (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 N.C. LEXIS 584 (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 N.C. LEXIS 48 (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 N.C. LEXIS 1062 (1973).

This section is applicable to prescriptive easements. Higdon v. Davis, 71 N.C. App. 640, 324 S.E.2d 5, 1984 N.C. App. LEXIS 3972 (1984), aff'd in part and rev'd in part, 315 N.C. 208 , 337 S.E.2d 543, 1985 N.C. LEXIS 1992 (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 N.C. App. LEXIS 3972 (1984), aff'd in part and rev'd in part, 315 N.C. 208 , 337 S.E.2d 543, 1985 N.C. LEXIS 1992 (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 N.C. App. LEXIS 19 (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 N.C. App. LEXIS 3972 (1984), aff'd in part and rev'd in part, 315 N.C. 208 , 337 S.E.2d 543, 1985 N.C. LEXIS 1992 (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 N.C. App. LEXIS 3972 (1984), aff'd in part and rev'd in part, 315 N.C. 208 , 337 S.E.2d 543, 1985 N.C. LEXIS 1992 (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 N.C. App. LEXIS 3972 (1984), aff'd in part and rev'd in part, 315 N.C. 208 , 337 S.E.2d 543, 1985 N.C. LEXIS 1992 (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 N.C. LEXIS 299 (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 Dep't of Transp., 86 N.C. App. 299, 357 S.E.2d 439, 1987 N.C. App. LEXIS 2709 (1987).

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 N.C. LEXIS 418 (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 N.C. LEXIS 172 (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 N.C. LEXIS 264 (1912); Mallet v. Huske, 262 N.C. 177 , 136 S.E.2d 553, 1964 N.C. LEXIS 611 (1964); Price v. Tomrich Corp., 275 N.C. 385 , 167 S.E.2d 766, 1969 N.C. LEXIS 409 (1969); Wilson County Bd. of Educ. v. Lamm, 276 N.C. 487 , 173 S.E.2d 281, 1970 N.C. LEXIS 702 (1970); Barringer v. Weathington, 11 N.C. App. 618, 182 S.E.2d 239, 1971 N.C. App. LEXIS 1599 (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, 1971 N.C. App. LEXIS 1385 , cert. denied, 279 N.C. 726 , 184 S.E.2d 883, 1971 N.C. LEXIS 914 (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 N.C. LEXIS 289 (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 N.C. LEXIS 273 (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 N.C. LEXIS 481 (1953); Watson v. Chilton, 14 N.C. App. 7, 187 S.E.2d 482, 1972 N.C. App. LEXIS 2025 (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 N.C. LEXIS 365 (1904); Bland v. Beasley, 145 N.C. 168 , 58 S.E. 993, 1907 N.C. LEXIS 273 (1907); Steward v. McCormick, 161 N.C. 625 , 77 S.E. 761, 1913 N.C. LEXIS 291 (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, 1988 N.C. App. LEXIS 444 (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 N.C. LEXIS 319 (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 N.C. LEXIS 449 (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 N.C. LEXIS 637 (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 N.C. LEXIS 224 (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 N.C. LEXIS 60 (1833); Blue Ridge Land Co. v. Floyd, 171 N.C. 543 , 88 S.E. 862, 1916 N.C. LEXIS 124 (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 N.C. LEXIS 614 (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 N.C. LEXIS 23 (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 N.C. LEXIS 5 (1895); Mallet v. Huske, 262 N.C. 177 , 136 S.E.2d 553, 1964 N.C. LEXIS 611 (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 N.C. LEXIS 183 (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 N.C. LEXIS 611 (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, 1988 N.C. App. LEXIS 444 (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 N.C. LEXIS 164 (1887); Christman v. Hilliard, 167 N.C. 4 , 82 S.E. 949, 1914 N.C. LEXIS 41 (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 N.C. LEXIS 611 (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 N.C. LEXIS 409 (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 N.C. LEXIS 409 (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 N.C. App. LEXIS 2844 (1980), rev'd, 301 N.C. 663 , 273 S.E.2d 285, 1981 N.C. LEXIS 1020 (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, 2007 U.S. Dist. LEXIS 74441 (E.D.N.C. 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 N.C. LEXIS 65 (1840) (cited in) Loftin v. Cobb, 46 N.C. 406 , 1854 N.C. LEXIS 120 (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 N.C. LEXIS 264 (1912).

For additional cases in which acts of possession were found sufficient, see Andrews v. Mulford, 2 N.C. 311 , 1796 N.C. LEXIS 45 (1796); Burton v. Carruth, 18 N.C. 2 , 1834 N.C. LEXIS 2 (1834); Wallace v. Maxwell, 32 N.C. 110 , 1849 N.C. LEXIS 63 (1849); Smith v. Bryan, 44 N.C. 180 , 1852 N.C. LEXIS 175 (1852); Moore v. Thompson, 69 N.C. 120 , 1873 N.C. LEXIS 188 (1873); Gudger v. Hensley, 82 N.C. 482 (1880); Staton v. Mullis, 92 N.C. 623 , 1885 N.C. LEXIS 2 70 (1885); Wall v. Wall, 142 N.C. 387 , 55 S.E. 283, 1906 N.C. LEXIS 264 (1906); LaRoque v. Kennedy, 156 N.C. 360 , 72 S.E. 454, 1911 N.C. LEXIS 188 (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 N.C. LEXIS 120 (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 N.C. LEXIS 88 (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 N.C. LEXIS 200 (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 N.C. LEXIS 48 (1922).

For additional cases in which acts of possession were held insufficient, see Ward v. Herrin, 49 N.C. 23 , 1856 N.C. LEXIS 10 (1856); Bartlett v. Simmons, 49 N.C. 295 , 1857 N.C. LEXIS 78 (1857); Hamilton v. Icard, 114 N.C. 532 , 19 S.E. 607, 1894 N.C. LEXIS 10 3 (1894); State v. Suttle, 115 N.C. 784 , 20 S.E. 725, 1894 N.C. LEXIS 316 (1894); Shaffer v. Gaynor, 117 N.C. 15 , 23 S.E. 154, 1895 N.C. LEXIS 5 (1895); Hamilton v. Icard, 117 N.C. 476 , 23 S.E. 354, 1895 N.C. LEXIS 97 (1895); Prevatt v. Harrelson, 132 N.C. 250 , 43 S.E. 800, 1903 N.C. LEXIS 268 (1903); Campbell v. Miller, 165 N.C. 51 , 80 S.E. 974, 1914 N.C. LEXIS 215 (1914); Blue Ridge Land Co. v. Floyd, 167 N.C. 686 , 83 S.E. 687, 1914 N.C. LEXIS 200 (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, 1988 N.C. App. LEXIS 444 (1988).

III.Hostile or Adverse Nature of Possession

As to requirement that possession be hostile to the true owner, see Gwyn v. Stokes, 9 N.C. 235 , 1822 N.C. LEXIS 53 (1822); Rogers v. Mabe, 15 N.C. 180 , 1833 N.C. LEXIS 64 (1833); Foscue v. Foscue, 37 N.C. 321 , 1842 N.C. LEXIS 156 (1842); Johnson v. Farlow, 35 N.C. 84 , 1851 N.C. LEXIS 117 (1851); Bland v. Beasley, 145 N.C. 168 , 58 S.E. 993, 1907 N.C. LEXIS 273 (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 N.C. App. LEXIS 2844 (1980), rev'd, 301 N.C. 663 , 273 S.E.2d 285, 1981 N.C. LEXIS 1020 (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 N.C. App. LEXIS 3972 (1984), aff'd in part and rev'd in part, 315 N.C. 208 , 337 S.E.2d 543, 1985 N.C. LEXIS 1992 (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 N.C. App. LEXIS 3972 (1984), aff'd in part and rev'd in part, 315 N.C. 208 , 337 S.E.2d 543, 1985 N.C. LEXIS 1992 (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 N.C. App. LEXIS 3259 (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, 1962 U.S. Dist. LEXIS 5326 (W.D.N.C. 1962), aff'd in part and rev'd in part, 323 F.2d 95, 1963 U.S. App. LEXIS 4157 (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 N.C. LEXIS 702 (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 N.C. App. LEXIS 2025 (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 N.C. LEXIS 268 (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 N.C. LEXIS 91 (1906). See also, Tharpe v. Holcomb, 126 N.C. 365 , 35 S.E. 608, 1900 N.C. LEXIS 246 (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 N.C. LEXIS 383 (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 N.C. LEXIS 2 (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 N.C. LEXIS 281 (1895); Roe v. Journigan, 181 N.C. 180 , 106 S.E. 680, 1921 N.C. LEXIS 38 (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 N.C. LEXIS 38 (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 N.C. App. LEXIS 2821 (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 N.C. LEXIS 362 (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 N.C. LEXIS 348 (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 N.C. App. LEXIS 2025 (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 N.C. App. LEXIS 2025 (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 N.C. LEXIS 450 (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 N.C. LEXIS 597 (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 N.C. LEXIS 597 (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 N.C. LEXIS 119 (1908); Blue Ridge Land Co. v. Floyd, 171 N.C. 543 , 88 S.E. 862, 1916 N.C. LEXIS 124 (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 N.C. App. LEXIS 1020 (1989).

IV.Continuity of Possession

Occasional acts of ownership, no matter how adverse, do not constitute a possession that will mature title. Sessoms v. McDonald, 237 N.C. 720 , 75 S.E.2d 904, 1953 N.C. LEXIS 712 (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 N.C. LEXIS 481 (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 N.C. LEXIS 264 (1912); Cross v. Seaboard Air Line Ry., 172 N.C. 119 , 90 S.E. 14, 1916 N.C. LEXIS 247 (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 N.C. LEXIS 202 (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 N.C. LEXIS 183 (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 N.C. LEXIS 409 (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 N.C. LEXIS 409 (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, 1919 N.C. LEXIS 88 (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 N.C. LEXIS 77 (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 N.C. App. LEXIS 1903 (1975), cert. denied, 289 N.C. 297 , 222 S.E.2d 697, 1976 N.C. LEXIS 1262 (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 , 1882 N.C. LEXIS 183 (1882).

An intervening period of five months was a sufficient interval to defeat adverse possession. Holdfast v. Shepard, 28 N.C. 361 , 1846 N.C. LEXIS 64 (1846).

An intervening period of one year was sufficient to defeat title by adverse possession. Ward v. Herrin, 49 N.C. 23 , 1856 N.C. LEXIS 10 (1856); Malloy v. Bruden, 86 N.C. 251 , 1882 N.C. LEXIS 183 (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 N.C. LEXIS 481 (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 N.C. LEXIS 158 (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 N.C. LEXIS 414 (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 N.C. LEXIS 137 (1896); Barrett v. Brewer, 153 N.C. 547 , 69 S.E. 614, 1910 N.C. LEXIS 127 (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 N.C. LEXIS 321 (1902).

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 N.C. LEXIS 321 (1902); May v. Manufacturing & Trading Co., 164 N.C. 262 , 80 S.E. 380, 1913 N.C. LEXIS 45 (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 N.C. LEXIS 481 (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 N.C. LEXIS 481 (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 N.C. LEXIS 183 (1859); Jennings v. White, 139 N.C. 23 , 51 S.E. 799, 1905 N.C. LEXIS 86 (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 N.C. LEXIS 65 (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 N.C. LEXIS 74 (1903); Jacobs v. Williams, 173 N.C. 276 , 91 S.E. 951, 1917 N.C. LEXIS 291 (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 N.C. LEXIS 137 (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 N.C. LEXIS 513 (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 N.C. App. LEXIS 342 (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 N.C. LEXIS 414 (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 N.C. LEXIS 409 (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 N.C. App. LEXIS 2821 (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 N.C. App. LEXIS 1020 (1989).

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, 2005 U.S. Dist. LEXIS 10732 (W.D.N.C. 2005).

V.Boundaries of Land Possessed

Editor’s Note. —

The case of Walls v. Grohman, 315 N.C. 239 , 337 S.E.2d 556 (1985), annotated below, overruled Price v. Whismant, 236 N.C. 381 , 72 S.E.2d 851 (1952); Gibson v. Dudley, 233 N.C. 255 , 63 S.E.2d 630 (1951); Sipe v. Blankenship, 37 N.C. App. 499, 246 S.E.2d 527 (1978), cert. denied, 296 N.C. 411 , 251 S.E.2d 470 (1979); and Garris v. Butler, 15 N.C. App. 268, 189 S.E.2d 809 (1972) to the extent that they applied a different rule.

Possession Must Be Actual. —

There can be no adverse possession without an actual possession of the locus in quo. Cutler v. Blackman, 4 N.C. 368 , 1817 N.C. LEXIS 2 (1817).

No constructive possession will ripen into good title. Williams v. Wallace, 78 N.C. 354 , 1878 N.C. LEXIS 225 (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 N.C. App. LEXIS 1599 (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 N.C. LEXIS 235 (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 N.C. LEXIS 162 (1913); McDaris v. Breit Bar “T” Corp., 265 N.C. 298 , 144 S.E.2d 59, 1965 N.C. LEXIS 969 (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 N.C. LEXIS 289 (1943); Wachovia Bank & Trust Co. v. Miller, 243 N.C. 1 , 89 S.E.2d 765, 1955 N.C. LEXIS 705 (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 N.C. App. LEXIS 3328 (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 N.C. LEXIS 409 (1969); Willis v. Johns, 55 N.C. App. 621, 286 S.E.2d 646, 1982 N.C. App. LEXIS 2232 (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 N.C. LEXIS 653 (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 N.C. LEXIS 637 (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 N.C. LEXIS 357 (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, 1988 N.C. App. LEXIS 444 (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 N.C. LEXIS 435 (1944); Price v. Tomrich Corp., 275 N.C. 385 , 167 S.E.2d 766, 1969 N.C. LEXIS 409 (1969). See also, Whiteheart v. Grubbs, 232 N.C. 236 , 60 S.E.2d 101, 1950 N.C. LEXIS 511 (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 N.C. LEXIS 409 (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 N.C. LEXIS 409 (1969); Allen v. Morgan, 48 N.C. App. 706, 269 S.E.2d 753, 1980 N.C. App. LEXIS 3299 (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 N.C. LEXIS 1995 (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 N.C. App. LEXIS 2047 (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 N.C. App. LEXIS 1020 (1989).

VI.Color of Title

A.In General

Adverse possession, to ripen into title after seven years, must be under color of title; otherwise a period of 20 years is required under G.S. 1-40 . Justice v. Mitchell, 238 N.C. 364 , 78 S.E.2d 122 (1953); Williams v. Weyerhaeuser Co., 378 F.2d 7 (4th Cir. 1967). In accord with original. See Taylor v. Brittain, 76 N.C. App. 574, 334 S.E.2d 242, 1985 N.C. App. LEXIS 4470 (1985), modified, 317 N.C. 146 , 343 S.E.2d 536, 1986 N.C. LEXIS 2387 (1986).

The possession has to be under color of title. United States v. Chatham, 208 F. Supp. 220, 1962 U.S. Dist. LEXIS 5326 (W.D.N.C. 1962), aff'd in part and rev'd in part, 323 F.2d 95, 1963 U.S. App. LEXIS 4157 (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 N.C. App. LEXIS 3972 (1984), aff'd in part and rev'd in part, 315 N.C. 208 , 337 S.E.2d 543, 1985 N.C. LEXIS 1992 (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 N.C. App. LEXIS 3972 (1984), aff'd in part and rev'd in part, 315 N.C. 208 , 337 S.E.2d 543, 1985 N.C. LEXIS 1992 (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 N.C. App. LEXIS 2387 (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, 1939 U.S. App. LEXIS 3002 (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, 1941 U.S. App. LEXIS 4026 (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 N.C. LEXIS 75 (1830); Isler v. Dewey, 84 N.C. 345 , 1881 N.C. LEXIS 87 (1881); Christenbury v. King, 85 N.C. 229 , 1881 N.C. LEXIS 245 (1881); Mobley v. Griffin, 104 N.C. 112 , 10 S.E. 142, 1889 N.C. LEXIS 160 (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 N.C. LEXIS 394 (1952); Carrow v. Davis, 248 N.C. 740 , 105 S.E.2d 60, 1958 N.C. LEXIS 394 (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 N.C. LEXIS 409 (1969); Hensley v. Ramsey, 283 N.C. 714 , 199 S.E.2d 1, 1973 N.C. LEXIS 1062 (1973); Adams v. Severt, 40 N.C. App. 247, 252 S.E.2d 276, 1979 N.C. App. LEXIS 2606 (1979); General Greene Inv. Co. v. Greene, 48 N.C. App. 29, 268 S.E.2d 810, 1980 N.C. App. LEXIS 3201 (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 N.C. App. LEXIS 3972 (1984), aff'd in part and rev'd in part, 315 N.C. 208 , 337 S.E.2d 543, 1985 N.C. LEXIS 1992 (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 N.C. App. LEXIS 3328 (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 N.C. LEXIS 158 (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 N.C. LEXIS 394 (1952); Johnson v. McLamb, 247 N.C. 534 , 101 S.E.2d 311, 1958 N.C. LEXIS 555 (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 N.C. LEXIS 1062 (1973).

A deed is color of title. King v. Lee, 9 N.C. App. 369, 176 S.E.2d 394, 1970 N.C. App. LEXIS 1360 (1970), modified, 279 N.C. 100 , 181 S.E.2d 400, 1971 N.C. LEXIS 754 (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, 1983 N.C. App. LEXIS 2535 (1983).

Exchange of deeds cannot constitute color of title. State v. Taylor, 60 N.C. App. 673, 300 S.E.2d 42, 1983 N.C. App. LEXIS 2535 (1983).

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 N.C. LEXIS 614 (1962); King v. Lee, 9 N.C. App. 369, 176 S.E.2d 394, 1970 N.C. App. LEXIS 1360 (1970), modified, 279 N.C. 100 , 181 S.E.2d 400, 1971 N.C. LEXIS 754 (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 N.C. LEXIS 614 (1962); King v. Lee, 9 N.C. App. 369, 176 S.E.2d 394, 1970 N.C. App. LEXIS 1360 (1970), modified, 279 N.C. 100 , 181 S.E.2d 400, 1971 N.C. LEXIS 754 (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 N.C. LEXIS 653 (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 N.C. App. LEXIS 4470 (1985), modified, 317 N.C. 146 , 343 S.E.2d 536, 1986 N.C. LEXIS 2387 (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 N.C. App. LEXIS 4470 (1985), modified, 317 N.C. 146 , 343 S.E.2d 536, 1986 N.C. LEXIS 2387 (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 N.C. LEXIS 969 (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). In accord with the main volume. See Phipps v. Paley, 90 N.C. App. 170, 368 S.E.2d 21, 1988 N.C. App. LEXIS 444 (1988); Rudisill v. Icenhour, 92 N.C. App. 741, 375 S.E.2d 682, 1989 N.C. App. LEXIS 57 (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 N.C. LEXIS 213 (1885); Smith v. Benson, 227 N.C. 56 , 40 S.E.2d 451, 1946 N.C. LEXIS 342 (1946); Locklear v. Oxendine, 233 N.C. 710 , 65 S.E.2d 673, 1951 N.C. LEXIS 397 (1951); Williams v. Robertson, 235 N.C. 478 , 70 S.E.2d 692, 1952 N.C. LEXIS 446 (1952); Powell v. Mills, 237 N.C. 582 , 75 S.E.2d 759, 1953 N.C. LEXIS 701 (1953); McDaris v. Breit Bar “T” Corp., 265 N.C. 298 , 144 S.E.2d 59, 1965 N.C. LEXIS 969 (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 N.C. LEXIS 94 (1878); Barker v. Southern Ry., 125 N.C. 596 , 34 S.E. 701, 1899 N.C. LEXIS 269 (1899); Fincannon v. Sudderth, 144 N.C. 587 , 57 S.E. 337, 1907 N.C. LEXIS 188 (1907); Katz v. Daughtrey, 198 N.C. 393 , 151 S.E. 879, 1930 N.C. LEXIS 355 (1930); Thomas v. Hipp, 223 N.C. 515 , 27 S.E.2d 528, 1943 N.C. LEXIS 313 (1943); Powell v. Mills, 237 N.C. 582 , 75 S.E.2d 759, 1953 N.C. LEXIS 701 (1953); Carrow v. Davis, 248 N.C. 740 , 105 S.E.2d 60, 1958 N.C. LEXIS 394 (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 N.C. App. LEXIS 2617 (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 N.C. App. LEXIS 2232 (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 N.C. App. LEXIS 2794 (1978).

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 N.C. LEXIS 449 (1953).

This section is applicable to prescriptive easements. Higdon v. Davis, 71 N.C. App. 640, 324 S.E.2d 5, 1984 N.C. App. LEXIS 3972 (1984), aff'd in part and rev'd in part, 315 N.C. 208 , 337 S.E.2d 543, 1985 N.C. LEXIS 1992 (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 N.C. App. LEXIS 3972 (1984), aff'd in part and rev'd in part, 315 N.C. 208 , 337 S.E.2d 543, 1985 N.C. LEXIS 1992 (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 N.C. App. LEXIS 3972 (1984), aff'd in part and rev'd in part, 315 N.C. 208 , 337 S.E.2d 543, 1985 N.C. LEXIS 1992 (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 N.C. App. LEXIS 3972 (1984), aff'd in part and rev'd in part, 315 N.C. 208 , 337 S.E.2d 543, 1985 N.C. LEXIS 1992 (1985).

As to color of title generally, see also Neal v. Nelson, 117 N.C. 393 , 23 S.E. 428, 1895 N.C. LEXIS 81 (1895); Smith v. Proctor, 139 N.C. 314 , 51 S.E. 889, 1905 N.C. LEXIS 129 (1905); Norwood v. Totten, 166 N.C. 648 , 82 S.E. 951, 1914 N.C. LEXIS 463 (1914); Whitten v. Peace, 188 N.C. 298 , 124 S.E. 571, 1924 N.C. LEXIS 57 (1924); Best v. Utley, 189 N.C. 356 , 127 S.E. 337, 1925 N.C. LEXIS 317 (1925); Barbee v. Bumpass, 191 N.C. 521 , 132 S.E. 275, 1926 N.C. LEXIS 112 (1926); Garner v. Horner, 191 N.C. 539 , 132 S.E. 290, 1926 N.C. LEXIS 118 (1926); Booth v. Hairston, 193 N.C. 278 , 136 S.E. 879, 1927 N.C. LEXIS 321 (1927); Ennis v. Ennis, 195 N.C. 320 , 142 S.E. 8, 1928 N.C. LEXIS 78 (1928); Stuart v. Bryant, 40 N.C. App. 206, 252 S.E.2d 286, 1979 N.C. App. LEXIS 2617 (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 N.C. App. LEXIS 817 (2015).

B.Documents Held to Be Color of Title

Limitations Period. —

Brother’s claim challenging the sister’s possession of their deceased mother’s real property was subject to the G.S. 1-38 limitations period rather than a 20-year period under G.S. 1-40 where a deed to the sister passed the appearance of color of title. Honeycutt v. Weaver, 257 N.C. App. 599, 812 S.E.2d 859, 2018 N.C. App. LEXIS 107 (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 N.C. LEXIS 251 (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 N.C. App. LEXIS 4470 (1985), modified, 317 N.C. 146 , 343 S.E.2d 536, 1986 N.C. LEXIS 2387 (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 N.C. LEXIS 394 (1952); Johnson v. McLamb, 247 N.C. 534 , 101 S.E.2d 311, 1958 N.C. LEXIS 555 (1958).

Void Deed. —

A void deed constitutes color of title. Bond v. Beverly, 152 N.C. 56 , 67 S.E. 55, 1910 N.C. LEXIS 205 (1910). See also, Potts v. Payne, 200 N.C. 246 , 156 S.E. 499, 1931 N.C. LEXIS 291 (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 N.C. LEXIS 23 (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 N.C. LEXIS 409 (1969); Hensley v. Ramsey, 283 N.C. 714 , 199 S.E.2d 1, 1973 N.C. LEXIS 1062 (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 N.C. LEXIS 409 (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 N.C. LEXIS 78 (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 N.C. LEXIS 239 (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 N.C. LEXIS 959 (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 N.C. LEXIS 73 (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 N.C. LEXIS 158 (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 N.C. LEXIS 555 (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 N.C. LEXIS 450 (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 N.C. LEXIS 394 (1952); Johnson v. McLamb, 247 N.C. 534 , 101 S.E.2d 311, 1958 N.C. LEXIS 555 (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 N.C. LEXIS 691 (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, 1914 U.S. App. LEXIS 2068 (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 N.C. LEXIS 244 (1890); Betts v. Gahagan, 212 F. 120, 1914 U.S. App. LEXIS 2068 (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, 1914 U.S. App. LEXIS 2068 (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 N.C. App. LEXIS 2025 (1972).

C.Documents Held Not Color of Title

Deed by Mortgagor in Possession. —

A deed by the mortgagor in possession to a third party, with notice of the mortgage, conveys only the equity of redemption, and does not pass such a colorable title as may ripen by possession into an absolute legal estate. Parker v. Banks, 79 N.C. 480 , 1878 N.C. LEXIS 93 (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 N.C. LEXIS 449 (1953). But see, Price v. Tomrich Corp., 275 N.C. 385 , 167 S.E.2d 766, 1969 N.C. LEXIS 409 (1969); Hensley v. Ramsey, 283 N.C. 714 , 199 S.E.2d 1, 1973 N.C. LEXIS 1062 (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 N.C. App. LEXIS 618 (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 N.C. LEXIS 217 (1928).

An unregistered deed is not color of title as against judgment creditors of the grantor. Eaton v. Dorib, 190 N.C. 14 , 128 S.E. 494, 1925 N.C. LEXIS 3 (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 N.C. LEXIS 62 (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 N.C. App. LEXIS 33 (1994).

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, 2017 N.C. App. LEXIS 1088 (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, 1914 U.S. App. LEXIS 2068 (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 N.C. LEXIS 959 (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 N.C. App. LEXIS 556 (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 N.C. App. LEXIS 363 (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, 1962 U.S. Dist. LEXIS 5326 (W.D.N.C. 1962), aff'd in part and rev'd in part, 323 F.2d 95, 1963 U.S. App. LEXIS 4157 (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, 1962 U.S. Dist. LEXIS 5326 (W.D.N.C. 1962), aff'd in part and rev'd in part, 323 F.2d 95, 1963 U.S. App. LEXIS 4157 (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, 1962 U.S. Dist. LEXIS 5326 (W.D.N.C. 1962), aff'd in part and rev'd in part, 323 F.2d 95, 1963 U.S. App. LEXIS 4157 (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 N.C. LEXIS 160 (1889); Midgett v. Midgett, 5 N.C. App. 74, 168 S.E.2d 53, 1969 N.C. App. LEXIS 1284 (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 N.C. App. LEXIS 1284 (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 N.C. LEXIS 409 (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 N.C. App. LEXIS 960 (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 N.C. LEXIS 365 (1904); Bland v. Beasley, 145 N.C. 168 , 58 S.E. 993, 1907 N.C. LEXIS 273 (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 N.C. App. LEXIS 3259 (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 N.C. LEXIS 357 (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 N.C. LEXIS 418 (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 N.C. LEXIS 418 (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, 1941 U.S. App. LEXIS 4026 (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 N.C. App. LEXIS 107 (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 N.C. LEXIS 43 (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 N.C. LEXIS 212 (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 N.C. LEXIS 299 (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 N.C. LEXIS 74 (1903). See also, May v. Atlantic C.L.R.R., 151 N.C. 388 , 66 S.E. 310, 1909 N.C. LEXIS 282 (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 N.C. App. LEXIS 3972 (1984), aff'd in part and rev'd in part, 315 N.C. 208 , 337 S.E.2d 543, 1985 N.C. LEXIS 1992 (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 N.C. App. LEXIS 3972 (1984), aff'd in part and rev'd in part, 315 N.C. 208 , 337 S.E.2d 543, 1985 N.C. LEXIS 1992 (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 N.C. LEXIS 1995 (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 N.C. App. LEXIS 2047 (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 N.C. App. LEXIS 1983 (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, 2007 U.S. Dist. LEXIS 74441 (E.D.N.C. 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 N.C. LEXIS 652 (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 N.C. App. LEXIS 363 (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 N.C. App. LEXIS 1983 (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 N.C. App. LEXIS 1983 (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 N.C. LEXIS 712 (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 N.C. LEXIS 1442 (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 N.C. LEXIS 652 (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, 1937 U.S. Dist. LEXIS 1615 (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 N.C. LEXIS 528 (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 N.C. LEXIS 217 (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 N.C. LEXIS 295 (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 N.C. LEXIS 701 (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 N.C. LEXIS 590 (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 N.C. App. LEXIS 3299 (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 N.C. LEXIS 62 (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 N.C. LEXIS 702 (1970).

As to absence due to imprisonment, see Helton v. Cook, 27 N.C. App. 565, 219 S.E.2d 505, 1975 N.C. App. LEXIS 1903 (1975), cert. denied, 289 N.C. 297 , 222 S.E.2d 697, 1976 N.C. LEXIS 1262 (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 N.C. App. LEXIS 2453 (1986).

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 N.C. App. LEXIS 1901 (2006).

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, 1971 N.C. App. LEXIS 1385 , cert. denied, 279 N.C. 726 , 184 S.E.2d 883, 1971 N.C. LEXIS 914 (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 N.C. App. LEXIS 1887 (1975); Stone v. Conder, 46 N.C. App. 190, 264 S.E.2d 760, 1980 N.C. App. LEXIS 2821 (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 N.C. App. LEXIS 3033 (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 N.C. App. LEXIS 199 (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 N.C. App. LEXIS 618 (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 N.C. App. LEXIS 3972 (1984), aff'd in part and rev'd in part, 315 N.C. 208 , 337 S.E.2d 543, 1985 N.C. LEXIS 1992 (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 N.C. App. LEXIS 199 (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 N.C. LEXIS 217 (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 N.C. App. LEXIS 1887 (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 N.C. App. LEXIS 1887 (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 N.C. App. LEXIS 1887 (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 N.C. LEXIS 549 (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 N.C. App. LEXIS 4470 (1985), modified, 317 N.C. 146 , 343 S.E.2d 536, 1986 N.C. LEXIS 2387 (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 N.C. LEXIS 549 (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 N.C. LEXIS 712 (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 N.C. LEXIS 490 (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, 2017 N.C. App. LEXIS 1088 (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 N.C. LEXIS 446 (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 N.C. LEXIS 467 (1948); Simmons v. Lee, 230 N.C. 216 , 53 S.E.2d 79, 1949 N.C. LEXIS 626 (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 N.C. App. LEXIS 389 (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 N.C. App. LEXIS 687 (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 N.C. App. LEXIS 2794 (1978).

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 N.C. LEXIS 423 (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 N.C. App. LEXIS 342 (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 N.C. LEXIS 525 (1950); Scott v. Lewis, 246 N.C. 298 , 98 S.E.2d 294, 1957 N.C. LEXIS 414 (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 N.C. LEXIS 284 (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 N.C. LEXIS 392 (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 N.C. LEXIS 300 (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 N.C. LEXIS 268 (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 N.C. App. LEXIS 1218 (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 N.C. LEXIS 652 (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 N.C. App. LEXIS 1057 (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 N.C. LEXIS 549 (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 N.C. LEXIS 596 (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 N.C. App. LEXIS 2457 (2007), aff'd, 362 N.C. 343 , 661 S.E.2d 732, 2008 N.C. LEXIS 491 (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 N.C. App. LEXIS 2844 (1980), rev'd, 301 N.C. 663 , 273 S.E.2d 285, 1981 N.C. LEXIS 1020 (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 N.C. App. LEXIS 3972 (1984), aff'd in part and rev'd in part, 315 N.C. 208 , 337 S.E.2d 543, 1985 N.C. LEXIS 1992 (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 N.C. App. LEXIS 194 , aff'd, 357 N.C. 571 , 597 S.E.2d 672, 2003 N.C. LEXIS 1268 (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 N.C. LEXIS 1995 (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 N.C. App. LEXIS 2047 (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 N.C. App. LEXIS 3972 (1984), aff'd in part and rev'd in part, 315 N.C. 208 , 337 S.E.2d 543, 1985 N.C. LEXIS 1992 (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 N.C. LEXIS 702 (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, 1991 N.C. App. LEXIS 710 , cert. denied, 329 N.C. 786 , 408 S.E.2d 516, 1991 N.C. LEXIS 641 (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 N.C. App. LEXIS 1218 (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 N.C. App. LEXIS 545 (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 N.C. App. LEXIS 545 (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 N.C. App. LEXIS 1466 (2012), aff'd, 366 N.C. 526 , 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 N.C. App. LEXIS 2844 (1980), rev'd, 301 N.C. 663 , 273 S.E.2d 285, 1981 N.C. LEXIS 1020 (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 N.C. App. LEXIS 3466 (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 N.C. App. LEXIS 101 (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 N.C. LEXIS 246 (1900); Williams v. Robertson, 235 N.C. 478 , 70 S.E.2d 692, 1952 N.C. LEXIS 446 (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 N.C. LEXIS 378 (1944); Morehead v. Harris, 262 N.C. 330 , 137 S.E.2d 174, 1964 N.C. LEXIS 653 (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 N.C. LEXIS 270 (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 N.C. App. LEXIS 3033 (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 N.C. App. LEXIS 3033 (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 N.C. App. LEXIS 3033 (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 N.C. App. LEXIS 3033 (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 N.C. LEXIS 74 (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 N.C. LEXIS 446 (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 N.C. LEXIS 210 (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 N.C. LEXIS 653 (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 N.C. LEXIS 339 (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, 1991 N.C. App. LEXIS 710 , cert. denied, 329 N.C. 786 , 408 S.E.2d 516, 1991 N.C. LEXIS 641 (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, 1991 N.C. App. LEXIS 710 , cert. denied, 329 N.C. 786 , 408 S.E.2d 516, 1991 N.C. LEXIS 641 (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 N.C. LEXIS 399 (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 N.C. LEXIS 1136 (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 N.C. LEXIS 144 (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 N.C. LEXIS 144 (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 N.C. LEXIS 67 (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 N.C. LEXIS 240 (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., 2013 Bankr. LEXIS 1793 (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, 266 N.C. App. 228, 831 S.E.2d 378, 2019 N.C. App. LEXIS 560 (2019), rev'd, 378 N.C. 342 , 861 S.E.2d 516, 2021- NCSC-90, 2021 N.C. LEXIS 710 (2021).

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 N.C. App. LEXIS 363 (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, 2019 Bankr. LEXIS 536 (Bankr. E.D.N.C. Feb. 22, 2019).

Superior court erred in entering summary judgment in favor of a borrower because the lender’s action for breach and payment of the entire balance of the promissory note action was not barred by the 10-year statute of limitations in G.S. 1-47(2) since the statute of limitations did not begin to run until the date the promissory note was executed. Pedlow v. Kornegay, 278 N.C. App. 239, 861 S.E.2d 903, 2021- NCCOA-303, 2021 N.C. App. LEXIS 315 (2021).

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 N.C. App. LEXIS 102 (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 N.C. LEXIS 123 (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 N.C. LEXIS 187 (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 N.C. App. LEXIS 1833 (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 N.C. LEXIS 226 (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 N.C. LEXIS 950 (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 N.C. App. LEXIS 811 (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 N.C. LEXIS 89 (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 N.C. LEXIS 339 (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, 266 N.C. App. 228, 831 S.E.2d 378, 2019 N.C. App. LEXIS 560 (2019), rev'd, 378 N.C. 342 , 861 S.E.2d 516, 2021- NCSC-90, 2021 N.C. LEXIS 710 (2021).

As to law prior to enactment of this section, see Hamlin v. Mebane, 54 N.C. 18 , 1853 N.C. LEXIS 41 (1853); Hodges v. Council, 86 N.C. 181 , 1882 N.C. LEXIS 171 (1882); Headen v. Womack, 88 N.C. 468 , 1883 N.C. LEXIS 107 (1883); Rogers v. Clements, 98 N.C. 180 , 3 S.E. 512, 1887 N.C. LEXIS 246 (1887); Ex parte Walker, 107 N.C. 340 , 12 S.E. 136, 1890 N.C. LEXIS 67 (1890).

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 N.C. LEXIS 89 (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, 1995 U.S. Dist. LEXIS 7369 (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 N.C. LEXIS 89 (1882).

As to prior law, see Ex parte Walker, 107 N.C. 340 , 12 S.E. 136, 1890 N.C. LEXIS 67 (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 N.C. LEXIS 118 (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 N.C. LEXIS 86 (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 N.C. LEXIS 248 (1881), aff'd, 87 N.C. 404 , 1882 N.C. LEXIS 89 (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 N.C. LEXIS 123 (1904). See also, McDonald v. Dickson, 85 N.C. 248 , 1881 N.C. LEXIS 248 (1881), aff'd, 87 N.C. 404 , 1882 N.C. LEXIS 89 (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 N.C. App. LEXIS 2458 (1986); State ex rel. Pruitt v. Pruitt, 94 N.C. App. 713, 380 S.E.2d 809, 1989 N.C. App. LEXIS 615 (1989).

This section applies to foreign judgments. Arrington v. Arrington, 127 N.C. 190 , 37 S.E. 212, 1900 N.C. LEXIS 52 (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, 1995 U.S. Dist. LEXIS 7369 (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 N.C. App. LEXIS 331 (2000).

Foreign Money Judgments. —

When a foreign money judgment is filed in compliance with G.S. 1C-1703 and G.S. 1C-1704 , this created a new judgment, subject to 10-year enforcement period as well as the running of any statute of limitations to enforce the new judgment, which each begin to run upon the filing of the foreign judgment in North Carolina. Trial court properly concluded the enforcement period began to run on the day the foreign judgments were properly filed and they remained enforceable. Nielson v. Schmoke, 2021-NCCOA-400, 278 N.C. App. 656, 863 S.E.2d 652, 2021- NCCOA-400, 2021 N.C. App. LEXIS 409 (2021).

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 N.C. App. LEXIS 602 (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, 2004 N.C. App. LEXIS 512 , cert. denied, 358 N.C. 731 , 601 S.E.2d 530, 2004 N.C. LEXIS 1011 (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 N.C. LEXIS 539 (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, 1980 U.S. Dist. LEXIS 13163 (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 N.C. LEXIS 248 (1881), aff'd, 87 N.C. 404 , 1882 N.C. LEXIS 89 (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 N.C. LEXIS 248 (1881), aff'd, 87 N.C. 404 , 1882 N.C. LEXIS 89 (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 N.C. LEXIS 123 (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 N.C. LEXIS 89 (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 N.C. LEXIS 235 (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 N.C. LEXIS 538 (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 N.C. LEXIS 13 (1894); McCaskill v. McKinnon, 121 N.C. 192 , 28 S.E. 265, 1897 N.C. LEXIS 203 (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 N.C. LEXIS 36 (1887).

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 N.C. LEXIS 416 (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 N.C. App. LEXIS 1637 (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 N.C. LEXIS 52 (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 N.C. App. LEXIS 615 (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 N.C. App. LEXIS 166 (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 N.C. App. LEXIS 615 (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 N.C. App. LEXIS 690 (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 N.C. LEXIS 203 (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 N.C. LEXIS 503 (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, 270 N.C. App. 805, 841 S.E.2d 835, 2020 N.C. App. LEXIS 253 (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 N.C. App. LEXIS 1466 (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 N.C. LEXIS 69 (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 N.C. LEXIS 240 (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 N.C. App. LEXIS 1806 (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 N.C. App. LEXIS 1806 (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 N.C. App. LEXIS 1806 (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 N.C. LEXIS 183 (1935).

III.Judgments Rendered by Justices

Limitation Is Now 10 Years. —

The period now prescribed for the commencement of an action on a judgment rendered in a justice’s court is 10 years from its date. Bryant v. Poole, 261 N.C. 553 , 135 S.E.2d 629, 1964 N.C. LEXIS 539 (1964).

IV.Sealed Instruments

A.In General

When Section Applies. —

To determine which statute of limitations applies, the court must look to the purpose of the cause of action; if the purpose is to enforce a sealed instrument, then G.S. 1-47(2) applies, but when the action is to reform an instrument because of fraud or mistake, G.S. 1-52(9) applies. Wells Fargo Bank, N.A. v. Stocks, 2021-NCSC-90, 378 N.C. 342 , 861 S.E.2d 516, 2021- NCSC-90, 2021 N.C. LEXIS 710 (2021).

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 N.C. App. LEXIS 1087 (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 N.C. LEXIS 419 (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 N.C. App. LEXIS 1243 (2014), rev'd, 369 N.C. 1 , 789 S.E.2d 445, 2016 N.C. LEXIS 652 (2016).

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 N.C. LEXIS 419 (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 N.C. LEXIS 60 (1880); Redmond v. Pippen, 113 N.C. 90 , 18 S.E. 50, 1893 N.C. LEXIS 2 5 (1893); Barnes v. Crawford, 201 N.C. 434 , 160 S.E. 464, 1931 N.C. LEXIS 2 (1931); North Carolina Bank & Trust Co. v. Williams, 208 N.C. 243 , 180 S.E. 81, 1935 N.C. LEXIS 377 (1935); North Carolina Bank & Trust Co. v. Williams, 209 N.C. 806 , 185 S.E. 18, 1936 N.C. LEXIS 355 (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 N.C. App. LEXIS 2641 (1986).

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 N.C. App. LEXIS 114 (1988), cert. denied, 326 N.C. 363 , 389 S.E.2d 810, 1990 N.C. LEXIS 147 (1990).

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 N.C. LEXIS 216 (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 N.C. App. LEXIS 2123 (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 N.C. App. LEXIS 2123 (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 N.C. LEXIS 1136 (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 N.C. LEXIS 401 (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 N.C. LEXIS 944 (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 N.C. LEXIS 52 (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 N.C. LEXIS 52 (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 N.C. LEXIS 255 (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 N.C. LEXIS 282 (1946) (distinguishing) Knight v. Braswell, 70 N.C. 709 , 1874 N.C. LEXIS 318 (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, 1890 N.C. LEXIS 237 (1890).

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 N.C. App. LEXIS 2240 (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 N.C. LEXIS 373 (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 N.C. LEXIS 7 (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 N.C. LEXIS 1883 (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, 1980 N.C. App. LEXIS 3214 (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, 1980 N.C. App. LEXIS 3214 (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, 1990 U.S. Dist. LEXIS 1495 (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 N.C. App. LEXIS 3804 (1984).

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, 1984 N.C. App. LEXIS 3607 (1984), rev'd, 313 N.C. 320 , 327 S.E.2d 878, 1985 N.C. LEXIS 1536 (1985).

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, 1984 N.C. App. LEXIS 3607 (1984), rev'd, 313 N.C. 320 , 327 S.E.2d 878, 1985 N.C. LEXIS 1536 (1985).

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, 1980 N.C. App. LEXIS 3214 (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 N.C. LEXIS 154 (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 N.C. App. LEXIS 3266 (1979).

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, 1936 U.S. App. LEXIS 3601 (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 N.C. LEXIS 224 (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 N.C. LEXIS 335 (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 N.C. App. LEXIS 3435 (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 N.C. App. LEXIS 1087 (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 N.C. App. LEXIS 991 (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 N.C. App. LEXIS 928 (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., 2013 Bankr. LEXIS 417 (Bankr. E.D.N.C. Feb. 1, 2013), aff'd, 2013 U.S. Dist. LEXIS 146005 (E.D.N.C. Oct. 9, 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 N.C. LEXIS 318 (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 N.C. LEXIS 394 (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 N.C. LEXIS 1883 (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 N.C. LEXIS 1883 (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 N.C. LEXIS 1883 (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, 1980 N.C. App. LEXIS 3214 (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, 2018 Bankr. LEXIS 4148 (Bankr. E.D.N.C. Sept. 21, 2018).

B.Counterclaims

Purpose of 1969 Amendment. —

The 1969 amendment, allowing persons sued under sealed instruments to assert any claims or defenses they might have by joinder of third parties as allowable under the Rules of Civil Procedure (G.S. 1A-1), even though those claims might otherwise be barred by other limiting statutes, ameliorated the potential for harsh results in the situation where a financial institution could wait to sue for deficiency after repossession and sale of collateral security until after the buyer’s rights of action against sellers for any breach of warranty were barred. The potential for abuse of the 10-year limitation was apparent in the situation where sellers and lenders were closely or inseparably related; the legislature chose to remedy this problem, not by reducing the length of time in which a lender or his assignee could sue on a sealed purchase money security agreement, but by increasing the period of time in which a buyer so sued could assert claims against his seller for breach, so that the time available to parties for either type of action is equal and concurrent when the holder of security interest sues first. North Carolina Nat'l Bank v. Holshouser, 38 N.C. App. 165, 247 S.E.2d 645, 1978 N.C. App. LEXIS 2123 (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 N.C. App. LEXIS 2805 (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, 1976 N.C. App. LEXIS 2380 , cert. denied, 290 N.C. 308 , 225 S.E.2d 829, 1976 N.C. LEXIS 1060 (1976), cert. denied, 429 U.S. 1002, 97 S. Ct. 533, 50 L. Ed. 2d 614, 1976 U.S. LEXIS 3857 (1976).

V.Mortgage Foreclosure

This section is the only limitation upon mortgagee’s right of action for foreclosure or sale. Parker v. Banks, 79 N.C. 480 , 1878 N.C. LEXIS 93 (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 N.C. LEXIS 239 (1904); Ownbey v. Parkway Properties, Inc., 222 N.C. 54 , 21 S.E.2d 900, 1942 N.C. LEXIS 20 (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 N.C. App. LEXIS 3221 (1987).

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 N.C. LEXIS 88 (1838); Williams v. Wallace, 78 N.C. 354 , 1878 N.C. LEXIS 225 (1878); London v. Bear, 84 N.C. 266 , 1881 N.C. LEXIS 69 (1881); Deming v. Gainey, 95 N.C. 528 , 1886 N.C. LEXIS 300 (1886); Simmons v. Ballard, 102 N.C. 105 , 9 S.E. 495, 1889 N.C. LEXIS 18 (1889); Woodlief v. Wester, 136 N.C. 162 , 48 S.E. 578, 1904 N.C. LEXIS 239 (1904); Ownbey v. Parkway Properties, Inc., 222 N.C. 54 , 21 S.E.2d 900, 1942 N.C. LEXIS 20 (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 N.C. LEXIS 239 (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 N.C. LEXIS 183 (1882); Woodlief v. Wester, 136 N.C. 162 , 48 S.E. 578, 1904 N.C. LEXIS 239 (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 N.C. LEXIS 239 (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 N.C. LEXIS 53 (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 N.C. LEXIS 85 (1882); Mask v. Tiller, 89 N.C. 423 , 1883 N.C. LEXIS 262 (1883); Thornburg v. Mastin, 93 N.C. 258 , 1885 N.C. LEXIS 52 (1885); Norton v. McDevit, 122 N.C. 755 , 30 S.E. 24, 1898 N.C. LEXIS 343 (1898). See also, Menzel v. Hinton, 132 N.C. 660 , 44 S.E. 385, 1903 N.C. LEXIS 335 (1903).

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 N.C. App. LEXIS 3221 (1987).

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 N.C. LEXIS 140 (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 N.C. App. LEXIS 3221 (1987).

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, 266 N.C. App. 228, 831 S.E.2d 378, 2019 N.C. App. LEXIS 560 (2019), rev'd, 378 N.C. 342 , 861 S.E.2d 516, 2021- NCSC-90, 2021 N.C. LEXIS 710 (2021).

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 N.C. LEXIS 589 (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 N.C. LEXIS 135 (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 N.C. LEXIS 29 (1918). See also, Capehart v. Dettrick, 91 N.C. 344 , 1884 N.C. LEXIS 75 (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 N.C. LEXIS 140 (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 N.C. LEXIS 294 (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 N.C. LEXIS 14 (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 N.C. LEXIS 58 (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 N.C. App. LEXIS 1038 (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, 1903 N.C. LEXIS 335 (1903); Cone v. Hyatt, 132 N.C. 810 , 44 S.E. 678, 1903 N.C. LEXIS 360 (1903); Miller v. Coxe, 133 N.C. 578 , 45 S.E. 940, 1903 N.C. LEXIS 97 (1903); Woodlief v. Wester, 136 N.C. 162 , 48 S.E. 578, 1904 N.C. LEXIS 239 (1904); Spain v. Hines, 214 N.C. 432 , 200 S.E. 25, 1938 N.C. LEXIS 369 (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 N.C. LEXIS 29 (1918); Humphrey v. Stephens, 191 N.C. 101 , 131 S.E. 383, 1926 N.C. LEXIS 14 (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 N.C. LEXIS 331 (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 N.C. LEXIS 70 (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, 1947 N.C. LEXIS 590 (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 N.C. LEXIS 401 (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 N.C. LEXIS 97 (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 N.C. LEXIS 365 (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, 1942 N.C. LEXIS 544 (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 N.C. LEXIS 102 (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 N.C. LEXIS 72 (1877), limited, Manning v. Elliott Bros., 92 N.C. 48 , 1885 N.C. LEXIS 150 (1885); Fox v. Kline, 85 N.C. 173 , 1881 N.C. LEXIS 233 (1881); Hutaff v. Adrian, 112 N.C. 259 , 17 S.E. 78, 1893 N.C. LEXIS 202 (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 N.C. LEXIS 202 (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 N.C. LEXIS 17 (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 N.C. LEXIS 17 (1903).

As to prior law, see Pemberton v. Simmons, 100 N.C. 316 , 6 S.E. 122, 1888 N.C. LEXIS 187 (1888).

VI.Redemption of Mortgages

When Redemption Barred. —

Where mortgagee has actual possession, either when the cause of action for redemption accrues or when he thereafter goes into and remains continuously in such possession for more than 10 years, before an action to redeem is commenced, the statute of limitations, where pleaded and relied upon in the answer, is a complete defense. Bernhardt v. Hagamon, 144 N.C. 526 , 57 S.E. 222, 1907 N.C. LEXIS 177 (1907); Crews v. Crews, 192 N.C. 679 , 135 S.E. 784, 1926 N.C. LEXIS 383 (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 N.C. LEXIS 589 (1951).

As to necessity that possession be in the mortgagee, see Simmons v. Ballard, 102 N.C. 105 , 9 S.E. 495, 1889 N.C. LEXIS 18 (1889); Cauley v. Sutton, 150 N.C. 327 , 64 S.E. 3, 1909 N.C. LEXIS 51 (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 N.C. LEXIS 383 (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 N.C. LEXIS 45 (1918); Stevens v. Turlington, 186 N.C. 191 , 119 S.E. 210, 1923 N.C. LEXIS 204 (1923); Crews v. Crews, 192 N.C. 679 , 135 S.E. 784, 1926 N.C. LEXIS 383 (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 N.C. LEXIS 18 (1889); Cauley v. Sutton, 150 N.C. 327 , 64 S.E. 3, 1909 N.C. LEXIS 51 (1909); McNair v. Boyd, 163 N.C. 478 , 79 S.E. 966, 1913 N.C. LEXIS 196 (1913); Crews v. Crews, 192 N.C. 679 , 135 S.E. 784, 1926 N.C. LEXIS 383 (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 N.C. LEXIS 13 (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 N.C. LEXIS 383 (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 N.C. LEXIS 589 (1951).

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 N.C. LEXIS 1708 (1985); Square D Co. v. C.J. Kern Contractors, 314 N.C. 423 , 334 S.E.2d 63, 1985 N.C. LEXIS 1883 (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 N.C. LEXIS 1708 (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 N.C. LEXIS 1708 (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, 2007 S.C. App. LEXIS 162 (S.C. Ct. App. 2007), cert. denied, 2008 S.C. LEXIS 208 (S.C. June 26, 2008).

This section must be affirmatively pleaded. Humble v. Mebane, 89 N.C. 410 , 1883 N.C. LEXIS 259 (1883), limited, Roper v. Burton, 107 N.C. 526 , 12 S.E. 334, 1890 N.C. LEXIS 103 (1890).

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 N.C. LEXIS 950 (1965).

As to the time for bringing actions on bonds under prior law, see Humble v. Mebane, 89 N.C. 410 , 1883 N.C. LEXIS 259 (1883), limited, Roper v. Burton, 107 N.C. 526 , 12 S.E. 334, 1890 N.C. LEXIS 103 (1890).

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 N.C. App. LEXIS 86 (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 N.C. App. LEXIS 192 (2010).

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 N.C. LEXIS 129 (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 N.C. LEXIS 40 (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 N.C. LEXIS 129 (1887). See also, Spruill v. Sanderson, 79 N.C. 466 , 1878 N.C. LEXIS 89 (1878); Vaughan v. Hines, 87 N.C. 445 , 1882 N.C. LEXIS 95 (1882); Woody v. Brooks, 102 N.C. 334 , 9 S.E. 294, 1889 N.C. LEXIS 40 (1889).

This statute protects the surety as well as the principal. Andres v. Powell, 97 N.C. 155 , 2 S.E. 235, 1887 N.C. LEXIS 1 29 (1887); Kennedy v. Cromwell, 108 N.C. 1 , 13 S.E. 135, 1891 N.C. LEXIS 1 (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 N.C. LEXIS 40 (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 N.C. LEXIS 1 (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 N.C. LEXIS 95 (1882). See also, Woody v. Brooks, 102 N.C. 334 , 9 S.E. 294, 1889 N.C. LEXIS 40 (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 N.C. LEXIS 40 (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 N.C. LEXIS 40 (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 N.C. LEXIS 129 (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 N.C. LEXIS 40 (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 N.C. LEXIS 259 (1883), limited, Roper v. Burton, 107 N.C. 526 , 12 S.E. 334, 1890 N.C. LEXIS 103 (1890).

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 N.C. LEXIS 40 (1889).

As to effect of failure to make final settlement, see Self v. Shugart, 135 N.C. 185 , 47 S.E. 484, 1904 N.C. LEXIS 22 (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 N.C. LEXIS 1 (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 N.C. LEXIS 22 (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 N.C. LEXIS 259 (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 N.C. LEXIS 510 (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 N.C. LEXIS 7 (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 N.C. LEXIS 288 (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 N.C. LEXIS 40 (1889).

III.Incorporeal Hereditaments

Restrictive Covenant Governed by Subdivision (3). —

An action to enforce a restrictive covenant is governed by subdivision (3) of this section. A restrictive covenant is a servitude, commonly referred to as a negative easement, and an easement is an incorporeal hereditament. This section requires that an action for injury to any incorporeal hereditament be brought within six years. Hawthorne v. Realty Syndicate, Inc., 43 N.C. App. 436, 259 S.E.2d 591, 1979 N.C. App. LEXIS 3089 (1979), aff'd, 300 N.C. 660 , 268 S.E.2d 494, 1980 N.C. LEXIS 1128 (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 N.C. App. LEXIS 686 (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 N.C. App. LEXIS 903 (1999), rev'd, 351 N.C. 433 , 527 S.E.2d 40, 2000 N.C. LEXIS 232 (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 N.C. App. LEXIS 903 (1999), rev'd, 351 N.C. 433 , 527 S.E.2d 40, 2000 N.C. LEXIS 232 (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 N.C. App. LEXIS 799 (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 N.C. App. LEXIS 1243 (2014), rev'd, 369 N.C. 1 , 789 S.E.2d 445, 2016 N.C. LEXIS 652 (2016).

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 N.C. LEXIS 652 (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 N.C. LEXIS 652 (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 N.C. App. LEXIS 2301 (1982), aff'd in part, modified, vacated in part, 308 N.C. 419 , 302 S.E.2d 868, 1983 N.C. LEXIS 1213 (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 N.C. LEXIS 1213 (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 N.C. LEXIS 1213 (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 N.C. LEXIS 1213 (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 N.C. LEXIS 1213 (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 N.C. App. LEXIS 2340 (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 N.C. LEXIS 1213 (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 N.C. App. LEXIS 1236 (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 N.C. App. LEXIS 2219 (1978), cert. denied, 296 N.C. 586 , 254 S.E.2d 33, 1979 N.C. LEXIS 1223 (1979).

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 N.C. App. LEXIS 2219 (1978), cert. denied, 296 N.C. 586 , 254 S.E.2d 33, 1979 N.C. LEXIS 1223 (1979).

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 N.C. App. LEXIS 643 (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 N.C. App. LEXIS 643 (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 N.C. LEXIS 1539 (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 N.C. LEXIS 1539 (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 N.C. App. LEXIS 1015 (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 N.C. App. LEXIS 398 (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 N.C. App. LEXIS 145 (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 N.C. App. LEXIS 145 (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 N.C. App. LEXIS 924 (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 N.C. App. LEXIS 145 (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 N.C. App. LEXIS 1359 (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 N.C. LEXIS 287 (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 N.C. App. LEXIS 449 (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 N.C. App. LEXIS 449 (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 N.C. LEXIS 1175 (1980).

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, 1984 U.S. App. LEXIS 21752 (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, 1986 N.C. App. LEXIS 2074 (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 N.C. App. LEXIS 2114 (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 N.C. App. LEXIS 924 (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 N.C. LEXIS 1175 (1980).

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 N.C. App. LEXIS 1927 (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 N.C. LEXIS 1187 (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 N.C. LEXIS 497 (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, 283 N.C. 79 , 194 S.E.2d 817, 1973 N.C. LEXIS 900 (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 N.C. LEXIS 1213 (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 N.C. LEXIS 1213 (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 N.C. App. LEXIS 2655 (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 N.C. LEXIS 988 (1990).

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 N.C. LEXIS 287 (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 N.C. LEXIS 1175 (1980) (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, 1980 N.C. App. LEXIS 3166 (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 N.C. App. LEXIS 4167 (1985).

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, 1987 N.C. App. LEXIS 2960 (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 N.C. App. LEXIS 2114 (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 N.C. LEXIS 988 (1990).

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 De v. , LLC, 515 B.R. 268, 2014 Bankr. LEXIS 3615 (Bankr. E.D.N.C. 2014), amended, 2015 Bankr. LEXIS 787 (Bankr. E.D.N.C. Mar. 13, 2015), aff'd, 2016 U.S. Dist. LEXIS 188654 (E.D.N.C. June 28, 2016).

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 —, 2012 Del. Super. LEXIS 256 (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 N.C. App. LEXIS 1015 (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 N.C. App. LEXIS 1015 (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 N.C. LEXIS 287 (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 N.C. App. LEXIS 1359 (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 N.C. App. LEXIS 1359 (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, 515 B.R. 256, 2014 Bankr. LEXIS 3616 (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, 516 B.R. 800, 2014 Bankr. LEXIS 4106 (Bankr. E.D.N.C. 2014), aff'd in part and rev'd in part, 2016 U.S. Dist. LEXIS 115948 (E.D.N.C. Aug. 23, 2016).

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, 2014 N.C. LEXIS 950 (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, 74 N.C. App. 732, 329 S.E.2d 681, 1985 N.C. App. LEXIS 3552 (1985) (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 N.C. App. LEXIS 2321 (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 N.C. App. LEXIS 2655 (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 N.C. App. LEXIS 3278 (1987).

Because defendant’s conduct occurred more than six years before plaintiff brought her claim, the six-year statute of repose in subsection (a) barred the claim. Cage v. Colonial Bldg. Co., 337 N.C. 682 , 448 S.E.2d 115, 1994 N.C. LEXIS 497 (1994).

Statute of repose for products liability claim was triggered upon the purchase by a drywaller of a synthetic stucco product for installation in a house, and the homebuyers’ claims against the drywaller and the product’s manufacturer, filed more than seven years later, were time barred; further, the statute of repose as to the homebuyers’ claim against the drywaller was not tolled by the filing of a class action to which the homebuyers had previously been members; finally, the willful and wanton negligence exception to the real property statute of repose was not applicable because the contractor’s and drywaller’s actions did not constitute willful and wanton negligence. Cacha v. Montaco, Inc., 147 N.C. App. 21, 554 S.E.2d 388, 2001 N.C. App. LEXIS 1065 (2001).

Under the statute of repose, a court properly granted a motion to dismiss when a complaint was filed more than six years after substantial completion of a house and, according to the complaint, the only acts subsequent to completion were repairs. Whitehurst v. Hurst Built, 156 N.C. App. 650, 577 S.E.2d 168, 2003 N.C. App. LEXIS 209 (2003).

Action alleging faulty construction of a house was barred by the statute of repose where the case was not filed until more than six years after the house was substantial completed and occupied as a residence; the homeowners’ allegations that the construction company’s conduct and failure to follow the building code constituted more than ordinary negligence were insufficient to establish equitable estoppel to bar the construction company from asserting the statute of limitations defense. Moore v. F. Douglas Biddy Constr., Inc., 161 N.C. App. 87, 587 S.E.2d 479, 2003 N.C. App. LEXIS 2004 (2003).

Court rejected customer’s contention that the date of substantial completion, under G.S. 1-50(a)(5), of an allegedly defective bench was defined by a renovation contract between the store in which the bench was located and the construction company that installed the bench, and that the statute of repose was tolled because the architectural firm failed to issue a certificate of substantial completion as provided for in the contract; the customer did not invoke a real party in interest statute nor was she named as a third-party beneficiary of the contract between the company and the store. Mitchell v. Mitchell's Formal Wear, Inc., 168 N.C. App. 212, 606 S.E.2d 704, 2005 N.C. App. LEXIS 145 (2005).

Trial court properly granted a roofing company’s motion under N.C. R. Civ. P. 12(b)(6) to dismiss a homeowner’s action alleging breach of warranty because the homeowner’s claim for monetary damages was barred by the six-year statute of repose pursuant to G.S. 1-50(a)(5)a; the complaint was filed approximately seven years after substantial completion of the improvement. Roemer v. Preferred Roofing, Inc., 190 N.C. App. 813, 660 S.E.2d 920, 2008 N.C. App. LEXIS 1094 (2008).

Summary judgment for a builder was proper in homeowners’ claim for damages arising from alleged construction defects in their home because the suit was filed more than seven years after the certificate of occupancy was issued, and thus the homeowners were unable to prove that the G.S. 1-50(a)(5)(a) six-year statute of repose was not a bar; the homeowners alleged no act by the builder after the date of the certificate of occupancy, nor any fraud or willful or wanton negligence in the construction of the home pursuant to G.S. 1-50(a)(5)(e), and, as such, the date of “substantial completion” for purposes of G.S. 1-50(a)(5)(c) was the date of the certificate of occupancy. Boor v. Spectrum Homes, Inc., 196 N.C. App. 699, 675 S.E.2d 712, 2009 N.C. App. LEXIS 529 (2009).

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 2005 paving was not the last specific act or omission giving rise to its claims where the association’s evidence indicated that the conduct giving rise to the claims was the placement and grading of the road, which occurred before March 2004; the association failed to connect the erosion of the bank to the paving. Glens of Ironduff Prop. Owners Ass'n v. Daly, 224 N.C. App. 217, 735 S.E.2d 445, 2012 N.C. App. LEXIS 1359 (2012).

Trial court properly granted summary judgment in favor of a manufacturer where, despite a 20-year express warranty, the homeowners’ action for damages was barred by the statute of repose because the manufacturer’s last act or omission was more than six years before the action was brought. Christie v. Hartley Constr., Inc., 228 N.C. App. 284, 745 S.E.2d 60, 2013 N.C. App. LEXIS 759 (2013), aff'd in part and rev'd in part, 367 N.C. 534 , 766 S.E.2d 283, 2014 N.C. LEXIS 950 (2014).

Because buildings were substantially completed nearly seven years before a condominium association commenced its action, the association failed to assert its negligent construction claim within six years of the date upon which the buildings were substantially completed. Trillium Ridge Condo. Ass'n v. Trillium Links & Vill., LLC, 236 N.C. App. 478, 764 S.E.2d 203, 2014 N.C. App. LEXIS 1015 (2014).

Subcontractor that sold doors and windows to the general contractor for use in condominium units general contractor was constructing was entitled to summary judgment on the general contractor’s claims alleging negligence and breach of express warranty because the claims were barred by G.S. 1-52 , North Carolina’s three-year statute of limitations on actions sounding in tort or contract; G.S. 1-50 provided that statute of limitations started to run when injury, loss, defect, or damage became apparent, and evidence showed that the general contractor knew that water was entering condominium units through windows and doors the subcontractor sold the general contractor more than three years before the general contractor sued the subcontractor. New Bern Riverfront Dev., LLC v. Weaver Cooke Constr., LLC, 2014 Bankr. LEXIS 3874 (Bankr. E.D.N.C. June 10, 2014).

Fact that a contractor may not have known the extent of damage caused by a water intrusion problem was not material to the legal question of when the statute of limitations with respect to any claim based upon that problem began to run pursuant to the North Carolina statute of limitations. Further, the fact that the contractor did not know until its receipt of a report that it might potentially be held liable by the debtor for alleged defects attributable to the subcontractor was also not material, as the dispositive issue was when its own negligence and breach of warranty causes of actions against the subcontractor accrued. New Bern Riverfront Dev., LLC v. Weaver Cooke Constr., LLC, 515 B.R. 247, 2014 Bankr. LEXIS 3588 (Bankr. E.D.N.C. 2014).

Action Barred Under G.S. 1-50(a)(5) and (a)(6). —

There was no error in a grant of summary judgment in favor of the designer and seller in the mother’s action for damages resulting from the death of her son because her negligence claim was untimely under either statute of repose, G.S. 1-50(a)(5) or (a)(6). Conway v. Hi-Tech Eng'g, Inc., 2011 Ark. 180, 381 S.W.3d 56, 2011 Ark. LEXIS 163 (2011).

With regard to whether a general contractor’s negligence and breach of express warranty claims against a subcontractor were time-barred, summary judgment was inappropriate since there was a genuine issue of material fact as to whether the alleged defects attributable to the subcontractor should have been apparent to the general contractor as it performed its supervisory tasks. Furthermore, the general contractor’s knowledge of water intrusion did not necessarily put it on notice of potential defects created by the subcontractor as the general contractor maintained that it was not until it received an expert report that it knew to attribute the intrusion to the subcontractor’s allegedly defective work. New Bern Riverfront Dev., LLC v. Weaver Cooke Constr., LLC, 2014 Bankr. LEXIS 3589 (Bankr. E.D.N.C. Aug. 25, 2014).

Claim Not Barred. —

Claim which arose after the 1981 amendment to subdivision (5) of this section, which eliminated claims involving willful or wanton negligence from the operation of subdivision (5), held not barred, even though more than six years had elapsed since the building in question had been constructed. Olympic Prods. Co. v. Roof Systems, 79 N.C. App. 436, 339 S.E.2d 432, 1986 N.C. App. LEXIS 2074 (1986).

Agreements between a motor speedway and a contractor tolled the statute of repose under G.S. 1-50(a)(5)(a) through the speedway’s filing of an indemnity action against the contractor. Charlotte Motor Speedway, Inc. v. Tindall Corp., 195 N.C. App. 296, 672 S.E.2d 691, 2009 N.C. App. LEXIS 120 (2009).

Six-year statute of repose under G.S. 1-50(a)(5) did not bar plaintiffs’ negligence action against the North Carolina Department of Environment and Natural Resources, which arose out of representations that certain lots had perked, as there was no defective or unsafe condition of an improvement to real property; a sanitarian did not inspect an existing septic system to see if it was up to code, but inspected a lot to determine if the land was suitable to construct an improvement. Dawson v. N.C. Dep't of Env't & Natural Res., 204 N.C. App. 524, 694 S.E.2d 427, 2010 N.C. App. LEXIS 1057 (2010).

As a result of the fact that purchasers’ breach of contract case arose from a seller’s failure to construct certain improvements to real property and the fact that the complaint was filed within six years of the date upon which the facilities specified in the parties’ infrastructure agreement were supposed to have been constructed, the purchasers’ claim was not barred by the six-year statute of repose. Davis v. Woodlake Partners, LLC, 230 N.C. App. 88, 748 S.E.2d 762, 2013 N.C. App. LEXIS 1087 (2013).

Estoppel from Raising Subdivision (5). —

In case in which plaintiff and defendant had entered into extension agreements in which defendants agreed not to raise a defense based on any statute of limitations to a claim filed by any of the plaintiffs, defendants were estopped from raising subdivision (5) of this section in bar of plaintiffs’ action on two grounds: (1) having made representations upon which plaintiffs relied, defendants could not in good faith repudiate such representations to plaintiffs’ detriment, and (2) having reaped the benefits from the extension agreements, defendants could not challenge the terms thereof. One N. McDowell Ass'n v. McDowell Dev. Co., 98 N.C. App. 125, 389 S.E.2d 834, 1990 N.C. App. LEXIS 296 (1990).

Time for Knowledge of Defect. —

Since the discovery rule was applicable to general contractor’s claims regarding alleged defective work by subcontractors, the subcontractor was not entitled to summary judgment on the statute of limitations defense because genuine issues of material fact existed as to whether the general contractor knew or should have known about alleged defective work more than three years prior to filing the complaint. New Bern Riverfront Dev., LLC v. Weaver Cooke Constr., LLC, 2014 Bankr. LEXIS 3983 (Bankr. E.D.N.C. Sept. 18, 2014).

I.In General

Statutes 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 N.C. LEXIS 1136 (1973).

The Legislature has been careful to provide a statute that is as broad as possible in order to insure that plaintiffs with both latent and patent personal injury claims would receive an adequate opportunity to pursue them. Barwick v. Celotex Corp., 736 F.2d 946, 1984 U.S. App. LEXIS 21752 (4th Cir. 1984).

Statutes of limitations are statutes of repose, intended to require that litigation be initiated within the prescribed time or not at all. Congleton v. City of Asheboro, 8 N.C. App. 571, 174 S.E.2d 870, 1970 N.C. App. LEXIS 1616 (1970).

G.S. 1-52(16) ’s statute of repose is likely unconstitutional as applied to cancer under the North Carolina’s Constitutional right to open courts; thus, interpreting G.S. 1-52(16) ’s statute of repose to exclude latent diseases saves the statute from “grave doubts” regarding its constitutionality. Jones v. United States, 751 F. Supp. 2d 835, 2010 U.S. Dist. LEXIS 119840 (E.D.N.C. 2010), transferred, 763 F. Supp. 2d 1381, 2011 U.S. Dist. LEXIS 11393 (J.P.M.L. 2011), rev'd, 768 F.3d 1378, 2014 U.S. App. LEXIS 19670 (11th Cir. 2014).

Statutes of Repose Constitutional. —

Although a certain number of plaintiffs will always have a problem with a statute of limitation or repose, this does not mean that they have been denied a constitutional right. Statutes limiting the time within which an action may be brought are the result of a legitimate legislative determination which balances the rights and duties of competing groups. Such statutes serve a necessary function in the fair administration of justice. Barwick v. Celotex Corp., 736 F.2d 946, 1984 U.S. App. LEXIS 21752 (4th Cir. 1984).

The North Carolina statute of repose as applied to an occupational disease claim, does not violate the equal protection clause of U.S. Const., Amend. XIV and the open-courts and equal protection guarantees of N.C. Const., Art. I, §§ 18 and 32. Barwick v. Celotex Corp., 736 F.2d 946, 1984 U.S. App. LEXIS 21752 (4th Cir. 1984).

Plaintiff’s argument that he had been denied equal protection because there is no legitimate public purpose to subdivision (16) of this section and because the statute promotes the interest of special groups over injured parties and the public in general was found to be without merit. Repose in the law is a legitimate public concern, and the repose granted after 10 years by subdivision (16) of this section is balanced against the plaintiff’s expanded rights under the statute. Barwick v. Celotex Corp., 736 F.2d 946, 1984 U.S. App. LEXIS 21752 (4th Cir. 1984).

Construction with Other Laws. —

The court held that the 60-day limitations period in G.S. 150B-23 is the period associated with the state statute, former G.S. 115C-116 (repealed), most analogous to the IDEA and rejected the idea that North Carolina’s catch-all three-year statute of limitations for statutory actions for which no limitations period is otherwise provided, pursuant to G.S. 1-52(2) , constituted a better borrowing choice and one more consistent with federal policies. CM by & Through JM v. Board of Educ., 241 F.3d 374, 2001 U.S. App. LEXIS 2555 (4th Cir. 2001), cert. denied, 534 U.S. 818, 122 S. Ct. 48, 151 L. Ed. 2d 18, 2001 U.S. LEXIS 5551 (2001), dismissed, 186 F. Supp. 2d 630, 2002 U.S. Dist. LEXIS 2984 (W.D.N.C. 2002).

State-law nuisance action that was filed by property owners who learned in 2009 that the owners’ well water was contaminated by chemicals a corporation allegedly stored on property the corporation used to operate an electronics plant was barred by G.S. 1-52 , North Carolina’s statute of repose, because it was filed more than ten years after the corporation sold the property in 1987; although 42 U.S.C.S. § 9658, which was part of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, preempted state statutes of limitations, statutes of limitations and statutes of repose had different objectives, and analysis of § 9658 showed that the federal statute did not preempt state statutes of repose. CTS Corp. v. Waldburger, 573 U.S. 1, 134 S. Ct. 2175, 189 L. Ed. 2d 62, 2014 U.S. LEXIS 3992 (2014).

Doctor’s complaint against a hospital was untimely filed in state court because, given the absence of a valid U.S. District Court order allowing the doctor to file the complaint more than thirty days after the dismissal of the doctor’s federal action against the hospital, the provisions of 28 U.S.C.S. § 1367(d) did not operate to suspend the running of the statute of limitations during the pendency of the doctor’s federal action, but, instead, extended it by thirty days following the dismissal of the action. Glynne v. Wilson Med. Ctr., 236 N.C. App. 42, 762 S.E.2d 645, 2014 N.C. App. LEXIS 964 (2014).

The purpose behind G.S. 1A-1 , Rule 4 and G.S. 1-52(5) is to give notice to the party against whom an action is commenced within a reasonable time after the accrual of the cause of action. Adams v. Brooks, 73 N.C. App. 624, 327 S.E.2d 19, 1985 N.C. App. LEXIS 3314 , cert. denied, 313 N.C. 596 , 332 S.E.2d 177, 1985 N.C. LEXIS 1790 (1985).

The purpose of a statute of limitations is to afford security against stale demands, not to deprive anyone of his just rights by lapse of time. Congleton v. City of Asheboro, 8 N.C. App. 571, 174 S.E.2d 870, 1970 N.C. App. LEXIS 1616 (1970).

Statutes of limitations are inflexible and unyielding. They operate inexorably without reference to the merits of plaintiff’s cause of action. Congleton v. City of Asheboro, 8 N.C. App. 571, 174 S.E.2d 870, 1970 N.C. App. LEXIS 1616 (1970); Wheeless v. St. Paul Fire & Marine Ins. Co., 11 N.C. App. 348, 181 S.E.2d 144, 1971 N.C. App. LEXIS 1520 (1971); Plott v. Wachovia Bank & Trust Co., 12 N.C. App. 694, 184 S.E.2d 384, 1971 N.C. App. LEXIS 1439 (1971); Blue Cross & Blue Shield v. Odell Assocs., 61 N.C. App. 350, 301 S.E.2d 459, 1983 N.C. App. LEXIS 2685 (1983).

And the court has no discretion when considering whether a claim is barred by the statute of limitations. Congleton v. City of Asheboro, 8 N.C. App. 571, 174 S.E.2d 870, 1970 N.C. App. LEXIS 1616 (1970).

Right of Defendant to Rely on Statute as a Defense. —

The statute of limitations operates to vest a defendant with the right to rely on the statute of limitations as a defense. Congleton v. City of Asheboro, 8 N.C. App. 571, 174 S.E.2d 870, 1970 N.C. App. LEXIS 1616 (1970).

Operation of Statute Not Interrupted by Unavailability of Information. —

The unavailability of information concerning a fact which must be proved in order for a plaintiff to recover does not interrupt or delay the operation of the statute of limitations. Wheeless v. St. Paul Fire & Marine Ins. Co., 11 N.C. App. 348, 181 S.E.2d 144, 1971 N.C. App. LEXIS 1520 (1971).

Discovery of the Wrong. —

Neither subdivision (2) nor subdivision (4) expressly provides for the three years to begin upon discovery of the wrong. First Investors Corp. v. Citizens Bank, Inc., 757 F. Supp. 687, 1991 U.S. Dist. LEXIS 2803 (W.D.N.C. 1991), aff'd, 956 F.2d 263 (4th Cir. 1992).

Continuing Wrong Doctrine. —

Under the continuing wrong doctrine, most of the claims in a shareholder’s derivative lawsuit were timely under the threeyear limitations period because the shareholder could recover for breach of fiduciary duty based on the failure to pay his salary and failure to provide an accounting that occurred within three years preceding the filing of the lawsuit. Marzec v. Nye, 203 N.C. App. 88, 690 S.E.2d 537, 2010 N.C. App. LEXIS 502 (2010).

Trial court erred in finding that a reclassification and concurrent change in billing methodology for water and sewer services at a retirement facility were arbitrary, capricious, unreasonable, and unreasonably discriminatory because the statutory three-year statute of limitations barred the facility owner’s complaint where, while the owner submitted a number of cases on the continuing wrong doctrine and the trial court appeared to have applied it, there was not a continuing violation, occasioned by continual unlawful acts, but rather only continual ill effects from an original violation, the reclassification of the water meters; the monthly bills constituted the continual ill effects from that reclassification. ACTS Retirement-Life Cmtys., Inc. v. Town of Columbus, 248 N.C. App. 456, 789 S.E.2d 527, 2016 N.C. App. LEXIS 825 (2016).

The fact that a person, in good faith, pursued another remedy, which turned out to be unavailable, does not extend the time allowed by the statute for the institution of an action. Wilson v. Crab Orchard Dev. Co., 276 N.C. 198 , 171 S.E.2d 873, 1970 N.C. LEXIS 665 (1970).

Classification of Limitations Is Based upon Nature of Right, Rather Than Remedy. —

There is no suggestion of classification in the limitations statutes on the basis of remedies which might be available for enforcement of the substantive right. The right asserted is determinative, not the relief sought. New Amsterdam Cas. Co. v. Waller, 301 F.2d 839, 1962 U.S. App. LEXIS 5451 (4th Cir. 1962).

The bar is applied under this section, not to the mode in which relief is sought, but to the relief itself. Spruill v. Sanderson, 79 N.C. 466 , 1878 N.C. LEXIS 89 (1878).

Cases to Which Section Applies. —

Where bodily injury to the person or a defect in property is an essential element of the cause of action the three-year statute of limitations found in this section should be utilized. Hanover Ins. Co. v. Amana Refrigeration, Inc., 106 N.C. App. 79, 415 S.E.2d 99, 1992 N.C. App. LEXIS 336 (1992).

The one-year statute of limitations contained in G.S. 1-54(2) , did not apply to action by the North Carolina School Boards Association and several boards of education for a declaratory judgment that various monetary payments collected by state agencies were subject to N.C. Const. art. IX, § 7 and three-year limitation of G.S. 1-52 was properly applied; although G.S. 1-54(2) had been applied to actions commenced by the State to collect civil penalties or forfeitures, G.S. 1-54(2) was not applicable because the school boards sought to recover payments provided to the public schools by N.C. Const. art. IX, § 7, and those payments had already been collected by the State. N.C. Sch. Bds. Ass'n v. Moore, 160 N.C. App. 253, 585 S.E.2d 418, 2003 N.C. App. LEXIS 1794 (2003), aff'd in part and rev'd in part, 359 N.C. 474 , 614 S.E.2d 504, 2005 N.C. LEXIS 694 (2005).

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 N.C. App. LEXIS 363 (2014).

Plaintiff’s claims for negligence, negligent misrepresentation, breach of contract, breach of fiduciary relationship, breach of duty of good faith and fair dealing, and fraud were subject to a three-year statute of limitations; based on the purported claims having arisen in January 2002, the three-year statute of limitations would have run in January 2005. Ussery v. Branch Banking & Trust Co., 368 N.C. 325 , 777 S.E.2d 272, 2015 N.C. LEXIS 935 (2015).

If plaintiffs contended a transfer of the unencumbered trust corpus was a violation of the terms of the trust, the purported transfer would have been a repudiation or disavowal of the trust, and such an act would have started the running of the statute of limitations beginning in 1996; as the statute of limitations to bring a claim for violation of an express trust was three years, plaintiffs’ claim was barred. Asheville Lakeview Props., LLC v. Lake View Park Comm'n, Inc., 254 N.C. App. 348, 803 S.E.2d 632, 2017 N.C. App. LEXIS 556 (2017).

Section Applies Even Though Enforcing Remedy Is Equitable Lien. —

Ten-year statute which applies when title to property is at issue does not apply where the action is merely for breach of contract, even though the enforcing remedy, the equitable lien, is analogous to remedies for resort to which the statute of limitations is 10 years. Fulp v. Fulp, 264 N.C. 20 , 140 S.E.2d 708, 1965 N.C. LEXIS 1102 (1965).

When Equitable Estoppel Applies. —

The lapse of time, when properly pleaded, is a technical legal defense. Nevertheless, equity will deny the right to assert that defense when delay has been induced by acts, representations or conduct the repudiation of which would amount to a breach of good faith. Nowell v. Great Atl. & Pac. Tea Co., 250 N.C. 575 , 108 S.E.2d 889, 1959 N.C. LEXIS 682 (1959).

The doctrine of equitable estoppel will toll a limitation only when it is the defendant himself who has misled the plaintiff, in such a manner as to make strict application of the limitation inequitable. Camack v. Hardee's Food Sys., 410 F. Supp. 469, 1976 U.S. Dist. LEXIS 16264 (D.N.C. 1976).

The doctrine of equitable estoppel may be invoked to prevent a defendant from relying on a statute of limitations if the defendant, by deception or a violation of duty toward the plaintiff, caused the plaintiff to allow his claim to be barred by the statute of limitations. Blizzard Bldg. Supply, Inc. v. Smith, 77 N.C. App. 594, 335 S.E.2d 762, 1985 N.C. App. LEXIS 4175 (1985), cert. denied, 315 N.C. 389 , 339 S.E.2d 410, 1986 N.C. LEXIS 2273 (1986).

Although a borrower’s claims for breach of fiduciary duty, negligence, fraud, breach of contract, and unfair and deceptive trade practices were filed after the expiration of the relevant statutes of limitations, evidence showing that the borrower’s delay was based on a lender’s assurances that a loan would be forgiven and that the borrower would be reimbursed for expenses related to the lender’s failure to obtain a government-backed loan created genuine disputes as to whether the lender was equitably estopped from asserting a statute of limitations defense. Ussery v. Branch Banking & Trust Co., 227 N.C. App. 434, 743 S.E.2d 650, 2013 N.C. App. LEXIS 544 (2013), rev'd, 368 N.C. 325 , 777 S.E.2d 272, 2015 N.C. LEXIS 935 (2015).

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 N.C. App. LEXIS 1015 (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 N.C. App. LEXIS 1015 (2014).

When Relief Will Be Barred by Laches. —

Where the action is barred by the applicable statute of limitations, the question of laches does not arise; when an action is not barred by the statute of limitations, equity will not bar relief on the ground of laches except upon special facts demanding exceptional relief. Howell v. Alexander, 3 N.C. App. 371, 165 S.E.2d 256, 1969 N.C. App. LEXIS 1584 (1969).

Section Not Retroactive. —

A bond for the payment of money executed prior to enactment of this section, by the principal and his sureties, is exempted from the operation of the statute of limitations as contained in this section. Knight v. Braswell, 70 N.C. 709 , 1874 N.C. LEXIS 318 (1874).

The defense of the statute is not barred by the existence of a fiduciary relation between the parties. Fulp v. Fulp, 264 N.C. 20 , 140 S.E.2d 708, 1965 N.C. LEXIS 1102 (1965).

As to the effect of G.S. 1A-1 , Rule 41(a)(2) upon the statute of limitations where actions are twice dismissed and recommenced in accordance with that rule, see Parrish v. Uzzell, 41 N.C. App. 479, 255 S.E.2d 219, 1979 N.C. App. LEXIS 2682 (1979).

To determine if a lawsuit is barred by the three year statute of limitations in G.S. 1-52 , a court first determines when the breach occurred that caused the cause of action to accrue; where a counterclaim on a breach of contract action was filed more than three years after the breach allegedly occurred, the counterclaim was barred by the statute of limtations and was properly dismissed on summary judgment. PharmaResearch Corp. v. Mash, 163 N.C. App. 419, 594 S.E.2d 148, 2004 N.C. App. LEXIS 410 (2004).

Statute Begins to Run When Plaintiff’s Right to Maintain Action Accrues. —

The period of the statute of limitations begins to run when plaintiff’s right to maintain an action for the wrong alleged accrues. The cause of action accrues when the wrong is complete, even though the injured party did not then know the wrong had been committed. Wilson v. Crab Orchard Dev. Co., 276 N.C. 198 , 171 S.E.2d 873, 1970 N.C. LEXIS 665 (1970).

A cause of action accrues to an injured party, so as to start the running of the statute of limitations, when he is at liberty to sue, being at the time under no disability. B-W Acceptance Corp. v. Spencer, 268 N.C. 1 , 149 S.E.2d 570, 1966 N.C. LEXIS 1122 (1966); Jamestown Mut. Ins. Co. v. Nationwide Mut. Ins. Co., 277 N.C. 216 , 176 S.E.2d 751, 1970 N.C. LEXIS 567 (1970); Wheeless v. St. Paul Fire & Marine Ins. Co., 11 N.C. App. 348, 181 S.E.2d 144, 1971 N.C. App. LEXIS 1520 (1971).

The statute of limitations cannot begin to run against an aggrieved party who under no circumstances could have maintained an action at the time the wrongful act was committed until that aggrieved party becomes entitled to maintain an action. Williams v. GMC, 393 F. Supp. 387, 1975 U.S. Dist. LEXIS 12550 (M.D.N.C. 1975), aff'd, 538 F.2d 327, 1976 U.S. App. LEXIS 7805 (4th Cir. 1976).

The limitations period does not begin to run, of course, until the injured party is at liberty to sue. Bumgarner v. Tomblin, 63 N.C. App. 636, 306 S.E.2d 178, 1983 N.C. App. LEXIS 3203 (1983); Glover v. First Union Nat'l Bank, 109 N.C. App. 451, 428 S.E.2d 206, 1993 N.C. App. LEXIS 359 (1993).

And When Defendant Becomes Liable to Suit. —

A cause of action accrues and the statute of limitations begins to run whenever a party becomes liable to an action, if at such time the demanding party is under no disability. This rule is subject to certain exceptions, such as torts grounded on fraud or mistake. Lewis v. Godwin Oil Co., 1 N.C. App. 570, 162 S.E.2d 135, 1968 N.C. App. LEXIS 1135 (1968).

The claim accrues at the time of invasion of the right, and nominal damages, at least, flow from such invasion. Brantley v. Dunstan, 10 N.C. App. 706, 179 S.E.2d 878, 1971 N.C. App. LEXIS 1703 (1971).

When the right of the party is once violated, even in ever so small a degree, the injury, in the technical acceptation of that term, at once springs into existence and the cause of action is complete. Lewis v. Godwin Oil Co., 1 N.C. App. 570, 162 S.E.2d 135, 1968 N.C. App. LEXIS 1135 (1968).

Accrual of Claim in Action to Recover for Water Contamination. —

Where plaintiffs were assured until May, 1984 by state and local officials that no contamination was present in their wells and where plaintiffs were informed in June, 1984, that their wells were contaminated, their cause of action accrued at this time, and because they instituted this civil action in July 1986, within three years from the time their cause of action accrued, their claims were not time-barred. Wilson v. McLeod Oil Co., 95 N.C. App. 479, 383 S.E.2d 392, rev’d on other grounds, Wilson v. McLeod Oil Co., 327 N.C. 491 , 398 S.E.2d 586 (1990), appeal of right allowed pursuant to N.C.R.A.P., Rule 16(b) and petition allowed as to additional issues, 325 N.C. 714 , 388 S.E.2d 473 (1989), rehearing denied, 328 N.C. 336 , 402 S.E.2d 844 (1991).

Where plaintiffs sued to recover damages suffered as a result of gasoline contaminating their water and the earliest reports by the Department of Natural Resources and Community Development (now the Department of Environment and Natural Resources) which indicated that their water contained nonorganic substances was compiled in 1985, plaintiff’s intervention in the case in Dec. 1987 was well before the three-year limitations period had expired. Wilson v. McLeod Oil Co., 95 N.C. App. 479, 383 S.E.2d 392, rev’d on other grounds, Wilson v. McLeod Oil Co., 327 N.C. 491 , 398 S.E.2d 586 (1990), appeal of right allowed pursuant to N.C.R.A.P., Rule 16(b) and petition allowed as to additional issues, 325 N.C. 714 , 388 S.E.2d 473 (1989), rehearing denied, 328 N.C. 336 , 402 S.E.2d 844 (1991).

Common law claims of trespass and nuisance, based on allegations of seepage of gasoline from defendant’s underground tanks into plaintiff ’s water supply, were not barred by the statute of limitations for a continuing trespass found in this section, where the ongoing seepage created a renewing rather than a continuing trespass. Wilson v. McLeod Oil Co., 327 N.C. 491 , 398 S.E.2d 586, 1990 N.C. LEXIS 988 (1990).

Once the statute of limitations begins to run against an action, it continues to run. Sheppard v. Barrus Constr. Co., 11 N.C. App. 358, 181 S.E.2d 130, 1971 N.C. App. LEXIS 1523 (1971).

And Nothing Stops It. —

Once the period of limitation begins to run nothing stops it. Davis v. E.I. DuPont DeNemours & Co., 400 F. Supp. 1347, 1974 U.S. Dist. LEXIS 11485 (W.D.N.C. 1974).

Except Appropriate Judicial Process. —

When the statute begins to run, it continues until stopped by appropriate judicial process. B-W Acceptance Corp. v. Spencer, 268 N.C. 1 , 149 S.E.2d 570, 1966 N.C. LEXIS 1122 (1966); Jamestown Mut. Ins. Co. v. Nationwide Mut. Ins. Co., 277 N.C. 216 , 176 S.E.2d 751, 1970 N.C. LEXIS 567 (1970); Wheeless v. St. Paul Fire & Marine Ins. Co., 11 N.C. App. 348, 181 S.E.2d 144, 1971 N.C. App. LEXIS 1520 (1971); Carl Rose & Sons Ready Mix Concrete, Inc. v. Thorp Sales Corp., 36 N.C. App. 778, 245 S.E.2d 234, 1978 N.C. App. LEXIS 2626 (1978).

A voluntary dismissal of negligence action without prejudice did not toll the statute of limitations in a case in which the plaintiff, seeing the statute of limitations about to run, received an order extending the time for filing a complaint but failed to serve defendant with civil summons and the order, filed her complaint within the time allowed by the order, and properly served defendant with the complaint and a “Delayed Service of Complaint.” The defective service of process discontinued plaintiff’s original action, and the trial court properly treated the voluntary dismissal as if it had never been filed and the statute of limitations as if it had not been tolled. Plaintiff’s second complaint, therefore, constituted a new action which plaintiff failed to file within the three years required by the statute of limitations. Latham v. Cherry, 111 N.C. App. 871, 433 S.E.2d 478, 1993 N.C. App. LEXIS 922 (1993).

Statute Runs Between Spouses. —

Statutes of limitation run as well between spouses as between strangers. Fulp v. Fulp, 264 N.C. 20 , 140 S.E.2d 708, 1965 N.C. LEXIS 1102 (1965).

Effect of Disability. —

This statute does not begin running against a person under disability, such as infancy, until the disability is removed, notwithstanding the fact that the cause may have otherwise accrued prior to that time. Settle v. Settle, 141 N.C. 553 , 54 S.E. 445, 1906 N.C. LEXIS 138 (1906).

Disability Need Not Be Pleaded. —

Plaintiff was not required to plead mental disability in avoidance of the affirmative defense of statute of limitations. Dunkley v. Shoemate, 121 N.C. App. 360, 465 S.E.2d 319, 1996 N.C. App. LEXIS 16 (1996).

The statute runs against an infant as to all rights of action which the guardian might bring and which it was incumbent on him to bring, insofar as may be consistent with the limitations of his office, except in suits for realty where the legal title is in the ward. Rowland v. Beauchamp, 253 N.C. 231 , 116 S.E.2d 720, 1960 N.C. LEXIS 494 (1960).

Mere Assertion as Insufficient Plea of Statute. —

The mere assertion, without any allegation of supporting facts, that plaintiff’s cause of action is barred by the statute is insufficient to constitute plea in bar. Wilson v. Crab Orchard Dev. Co., 276 N.C. 198 , 171 S.E.2d 873, 1970 N.C. LEXIS 665 (1970).

Relation Back of Amended Complaint. —

Where the original pleadings clearly gave notice of the transactions, occurrences or series of transactions or occurrences to be proved pursuant to the amended pleadings, and the essential details were alleged in substantially the same fashion in both the original and the amended complaints, the original pleadings placed defendants on notice of the events involved and the amended complaint related back for purposes of the statute of limitations. Clary v. Nivens, 12 N.C. App. 690, 184 S.E.2d 374, 1971 N.C. App. LEXIS 1437 (1971).

Where an action was commenced by the issuance of summons and filing of a complaint before the running of the three-year statute of limitations, an amended complaint related back to the issuance of the summons and the filing of the original complaint where the amendment did not in any way alter the substance of the complaint. Jones v. Whitaker, 59 N.C. App. 223, 296 S.E.2d 27, 1982 N.C. App. LEXIS 3074 (1982).

When Judgment on Pleadings Proper. —

A judgment on the pleadings based on the statute of limitations is proper when, and only when, all the facts necessary to establish the limitation are alleged or admitted, construing the nonmovant’s pleadings liberally in his favor and giving him the benefit of all relevant inferences of fact to be drawn therefrom. Huss v. Huss, 31 N.C. App. 463, 230 S.E.2d 159, 1976 N.C. App. LEXIS 2018 (1976).

A judgment on the pleadings in favor of a defendant on defendant’s plea in bar of the statute of limitations is proper when all the facts necessary to establish said plea are alleged or admitted in plaintiff’s pleadings. Land v. Neill Pontiac, Inc., 6 N.C. App. 197, 169 S.E.2d 537, 1969 N.C. App. LEXIS 1167 (1969).

Where the statute of limitations is properly pleaded and all facts are admitted or established, the question of limitations becomes a matter of law, and summary judgment is appropriate. Blue Cross & Blue Shield v. Odell Assocs., 61 N.C. App. 350, 301 S.E.2d 459, 1983 N.C. App. LEXIS 2685 (1983).

Once the statute is pleaded, the burden is on the plaintiff to show that the action was brought within the applicable period. Parker v. Harden, 121 N.C. 57 , 28 S.E. 20, 1897 N.C. LEXIS 161 (1897); Swartzberg v. Reserve Life Ins. Co., 252 N.C. 150 , 113 S.E.2d 270, 1960 N.C. LEXIS 409 (1960); Bennett v. Anson Bank & Trust Co., 265 N.C. 148 , 143 S.E.2d 312, 1965 N.C. LEXIS 950 (1965); Lewis v. Godwin Oil Co., 1 N.C. App. 570, 162 S.E.2d 135, 1968 N.C. App. LEXIS 1135 (1968); State v. Cessna Aircraft Corp., 9 N.C. App. 557, 176 S.E.2d 796, 1970 N.C. App. LEXIS 1404 (1970); Little v. Rose, 285 N.C. 724 , 208 S.E.2d 666, 1974 N.C. LEXIS 1130 (1974); Burkhimer v. Gealy, 39 N.C. App. 450, 250 S.E.2d 678, 1979 N.C. App. LEXIS 2505 , cert. denied, 297 N.C. 298 , 254 S.E.2d 918, 1979 N.C. LEXIS 1299 (1979); Silver v. North Carolina Bd. of Transp., 47 N.C. App. 261, 267 S.E.2d 49, 1980 N.C. App. LEXIS 3084 (1980).

And Not on Defendant. —

While the plea of the statute of limitations is a positive defense and must be pleaded, even so, when it has been properly pleaded, the burden of proof is then upon the party against whom the statute is pleaded to show that his claim is not barred, and is not upon the party pleading the statute to show that it is barred. Solon Lodge v. Ionic Lodge, 247 N.C. 310 , 101 S.E.2d 8, 1957 N.C. LEXIS 702 (1957).

Directed Verdict Where Plaintiff Fails to Sustain Burden. —

If plaintiff fails to introduce evidence to carry the burden of proving that the action was instituted within the prescribed period, the trial judge can allow a defense motion for a directed verdict. Little v. Rose, 285 N.C. 724 , 208 S.E.2d 666, 1974 N.C. LEXIS 1130 (1974).

Propriety of Summary Judgment When Claim Is Barred. —

If the plaintiff’s claim is barred by the running of the statute of limitations, defendant is entitled to judgment as a matter of law, and summary judgment, under G.S. 1A-1 , Rule 56, is appropriate. Brantley v. Dunstan, 10 N.C. App. 706, 179 S.E.2d 878, 1971 N.C. App. LEXIS 1703 (1971).

As to the grant of a nonsuit where party against whom statute was pleaded fails to sustain his burden, see Solon Lodge v. Ionic Lodge, 247 N.C. 310 , 101 S.E.2d 8, 1957 N.C. LEXIS 702 (1957); Fulp v. Fulp, 264 N.C. 20 , 140 S.E.2d 708, 1965 N.C. LEXIS 1102 (1965).

Ordinarily, the bar of the statute of limitations is a mixed question of law and fact. Yancey v. Watkins, 17 N.C. App. 515, 195 S.E.2d 89, 1973 N.C. App. LEXIS 1395 , cert. denied, 283 N.C. 394 , 196 S.E.2d 277, 1973 N.C. LEXIS 989 (1973); Little v. Rose, 285 N.C. 724 , 208 S.E.2d 666, 1974 N.C. LEXIS 1130 (1974).

Whether a cause of action is barred by the statute of limitations is a mixed question of law and fact. First Investors Corp. v. Citizens Bank, Inc., 757 F. Supp. 687, 1991 U.S. Dist. LEXIS 2803 (W.D.N.C. 1991), aff'd, 956 F.2d 263 (4th Cir. 1992).

Where the statute of limitations is properly pleaded and the facts are not in conflict, the issue becomes one of law. First Investors Corp. v. Citizens Bank, Inc., 757 F. Supp. 687, 1991 U.S. Dist. LEXIS 2803 (W.D.N.C. 1991), aff'd, 956 F.2d 263 (4th Cir. 1992).

When Bar of Limitations Is a Matter of Law. —

Where the bar is properly pleaded and all the facts with reference thereto are admitted, the question of limitations becomes a matter of law. Yancey v. Watkins, 17 N.C. App. 515, 195 S.E.2d 89, 1973 N.C. App. LEXIS 1395 , cert. denied, 283 N.C. 394 , 196 S.E.2d 277, 1973 N.C. LEXIS 989 (1973).

Where the facts are admitted or established, the trial court may sustain the plea to dismiss as a matter of law. Little v. Rose, 285 N.C. 724 , 208 S.E.2d 666, 1974 N.C. LEXIS 1130 (1974).

Limitations bar was established as a matter of law in a shareholder’s derivative lawsuit as to a breach of fiduciary claim based on a failure to produce corporate records, but the limitations bar was not established as a matter of law as to breach of fiduciary duty claims based on a particular loan and based on usurping a corporate opportunity because the allegations of the complaint did not affirmatively establish that these events occurred more than three years before the suit was filed. Marzec v. Nye, 203 N.C. App. 88, 690 S.E.2d 537, 2010 N.C. App. LEXIS 502 (2010).

When the Issue Is a Jury Question. —

Where the evidence is sufficient to support an inference that the cause of action is not barred, the issue is for the jury. Little v. Rose, 285 N.C. 724 , 208 S.E.2d 666, 1974 N.C. LEXIS 1130 (1974).

Where the facts are in doubt or in dispute and there is any evidence sufficient to justify the inference that the cause of action is not barred, the trial court may not withdraw the case from the jury. Solon Lodge v. Ionic Lodge, 247 N.C. 310 , 101 S.E.2d 8, 1957 N.C. LEXIS 702 (1957).

Failure to plead subdivision (16) by precise number and subsection is not fatal under G.S. 1A-1 , Rule 8(c). Bonestell v. North Topsail Shores Condominiums, Inc., 103 N.C. App. 219, 405 S.E.2d 222, 1991 N.C. App. LEXIS 643 (1991).

Actions Against Police Officers for False Arrest, False Imprisonment, and Assault and Battery. —

This section, providing for three-year statute of limitations, not G.S. 1-54(3) , providing for one-year statute, governed plaintiff’s claims for false arrest and assault against police officer and city. Fowler v. Valencourt, 432 S.E.2d 306, 1993 N.C. LEXIS 350 (N.C.), op. withdrawn, 334 N.C. 345 , 435 S.E.2d 530, 1993 N.C. LEXIS 662 (1993).

To the extent that Mobley v. Broome, 248 N.C. 54 , 102 S.E.2d 407 (1958), Evans v. Chipps, 56 N.C. App. 232, 287 S.E.2d 426 (1982), and Jones v. City of Greensboro, 51 N.C. App. 571, 277 S.E.2d 562 (1981), hold that the one-year statute of limitation for false imprisonment and assault and battery is the applicable statute when a plaintiff alleges claims for false arrest, false imprisonment, and assault and battery by a police officer in the exercise of official duties, those cases are expressly overruled. Fowler v. Valencourt, 432 S.E.2d 306, 1993 N.C. LEXIS 350 (N.C.), op. withdrawn, 334 N.C. 345 , 435 S.E.2d 530, 1993 N.C. LEXIS 662 (1993).

Ruling that the three-year statute of limitation found in this section applies when a plaintiff alleges claims for false arrest, false imprisonment, and assault and battery by a police officer in the exercise of official duties was not to be given prospective application only. Fowler v. Valencourt, 432 S.E.2d 306, 1993 N.C. LEXIS 350 (N.C.), op. withdrawn, 334 N.C. 345 , 435 S.E.2d 530, 1993 N.C. LEXIS 662 (1993).

Tolling of Statute. —

A statute of limitations is tolled during the time the seller endeavors to make repairs to enable the product to comply with a warranty. Haywood Street Redevelopment Corp. v. Harry S. Peterson, Co., 120 N.C. App. 832, 463 S.E.2d 564, 1995 N.C. App. LEXIS 937 (1995).

Non-Compliance with Administrative Procedures Prescribed by E.R.I.S.A. —

Because the employee failed to exhaust the administrative remedies provided by the employee benefit plan, the court granted defendants’ motion for summary judgment and denied the employee’s motion for summary judgment; although the attorney’s actions might have been the cause of the employee’s failure to timely file an appeal, such an excuse had not been recognized as a justification for non-compliance with the administrative procedures prescribed by the Employee Retirement Income Security Act, 29 U.S.C.S. § 1001 et seq., and did not extend the three year statute of limitations provided in subsection (l) of this section. Moses v. Provident Life & Accident Ins. Co., 2003 U.S. Dist. LEXIS 4529 (M.D.N.C. Mar. 21, 2003).

Amendment Not Barred. —

In depositor’s action against bank to recover damages allegedly resulting from bank losing deposit in the original pleading, it was alleged that defendant breached the bailor-bailee relationship by failing to find and credit a deposit. Depositor’s amendment to the complaint alleged that defendant’s failure to find and credit the deposit was negligence. The amended pleading did not allude to any new occurrence or transaction; it merely characterized differently the same occurrences and transactions that the original pleading was based upon. The original pleading was notice to defendant of what was to be proved in the amended pleading pursuant to G.S. 1A-1 , Rule 15(c); therefore, the amendment was deemed to have been interposed at the time the claim in the original pleading was interposed. Ford v. NCNB Corp., 104 N.C. App. 172, 408 S.E.2d 738, 1991 N.C. App. LEXIS 1005 (1991).

An action to recover damages for patent infringement and for appropriating and using confidential information relating to the patent was governed by subdivisions (5) and (9) of this section and not by G.S. 1-56 . Reynolds v. Whitin Mach. Works, 167 F.2d 78, 1948 U.S. App. LEXIS 4151 (4th Cir.), cert. denied, 334 U.S. 844, 68 S. Ct. 1513, 92 L. Ed. 1768, 1948 U.S. LEXIS 2810 (1948).

This section was not applicable to an action specifically brought under former G.S. 105-414. Miller v. McConnell, 226 N.C. 28 , 36 S.E.2d 722, 1946 N.C. LEXIS 387 (1946).

A resulting or constructive trust, as distinguished from an express trust, is governed by the 10-year statute of limitations, G.S. 1-56 , and not by this section. Howell v. Alexander, 3 N.C. App. 371, 165 S.E.2d 256, 1969 N.C. App. LEXIS 1584 (1969).

Section Not Applicable to Action to Recover Share of Estate. —

An action by an administrator to recover his intestate’s share of an estate is governed by G.S. 1-56 , which provides that actions not otherwise provided for shall be brought within 10 years, and not this section. Hunt v. Wheeler, 116 N.C. 422 , 21 S.E. 915, 1895 N.C. LEXIS 221 (1895).

Action Not Barred. —

An action for malicious prosecution or abuse of process was not barred by this section, where the action was begun two years, 11 months and 21 days after the plaintiff was discharged from the State hospital. Barnette v. Woody, 242 N.C. 424 , 88 S.E.2d 223, 1955 N.C. LEXIS 604 (1955).

Action Barred. —

Trial court did not err in granting the North Carolina Department of Health and Human Services summary judgment in corporations’ action alleging breach of contract, conversion, and unjust enrichment because the claims were filed outside the statute of limitations, G.S. 1-52(1) , (4); In response to the corporations’ inquiry into the status of an investigation, a letter was sent to their counsel stating that the investigation had been closed, and the corporations filed their complaint more than three years after the communication. Housecalls Home Health Care, Inc. v. State, 200 N.C. App. 66, 682 S.E.2d 741, 2009 N.C. App. LEXIS 1563 (2009).

To the extent the first plaintiff’s estate’s unjust enrichment claim was premised upon its conversion theories which were time-barred, that unjust enrichment claim was also barred by the three-year statute of limitations. Lockerman v. South River Elec. Mbrshp. Corp., 250 N.C. App. 631, 794 S.E.2d 346, 2016 N.C. App. LEXIS 1234 (2016).

Trial court properly granted the contractors summary judgment on the city’s negligence, fraud, negligent misrepresentation, breach of contract, breach of warranty, and professional malpractice claims arising from the rehabilitation and repair of the city’s sanitary sewer collection system where the city filed the suit more than four years after all the claims arose, and since the operation and maintenance of a sewer system was a proprietary function, not governmental, the doctrine of nullum tempus occurrit regi did not apply. Town of Littleton v. Layne Heavy Civil, Inc., 261 N.C. App. 88, 819 S.E.2d 101, 2018 N.C. App. LEXIS 804 (2018).

Wife’s argument that the agreement was unenforceable and voidable was time-barred under G.S. 1-52(1) and (9) where the claim had accrued at the time the husband and wife signed and implemented the prenuptial agreement, which was 37 years prior to the initiation of the instant lawsuit. Crosland v. Patrick, 855 S.E.2d 303 (March 16, 2021).

Based on the plain language of the Revival Provision, 2019 N.C. Sess. Laws 199 revives only civil actions for child sexual abuse otherwise time-barred and does not revive civil actions for child sexual abuse barred by disposition of a previous action. Doe v. Roman Cath. Diocese of Charlotte, 2022-NCCOA-288, 2022 N.C. App. LEXIS 322 (May 3, 2022).

In an action to recover damages from defendant attorneys-at-law, for failing properly to file a cause of action on behalf of the plaintiff, the claim accrued at the time of the filing of the defective summons. Brantley v. Dunstan, 10 N.C. App. 706, 179 S.E.2d 878 (1971). As to actions for professional malpractice, see now G.S. 1-15(c) .

Action for Payment of Medical Treatment. —

Absent a contract stipulating the date when payment is due, a cause of action for collection of payment for continuing medical treatment arises at the time the last treatment is provided. Johnson Neurological Clinic, Inc. v. Kirkman, 121 N.C. App. 326, 465 S.E.2d 32, 1996 N.C. App. LEXIS 6 (1996).

Plaintiff’s claim against health care provider for unauthorized disclosure of communications was one for malpractice, and the applicable statute of limitations was G.S. 1-15(c) , rather than this section. The cause of action accrued at the time of the last unauthorized discussion of the patient’s case with another doctor. Watts v. Cumberland County Hosp. Sys., 75 N.C. App. 1, 330 S.E.2d 242, 1985 N.C. App. LEXIS 3577 (1985), rev'd, 317 N.C. 321 , 345 S.E.2d 201, 1986 N.C. LEXIS 2791 (1986).

Statement Not Acknowledgment. —

Defendant’s statement that he “planned to refile this on my insurance and handle the balance myself” indicated his payment was conditioned upon whatever the insurance coverage did not pay. It demonstrated a willingness to pay only whatever amount would be left after refiling the claim with his insurance company; therefore, the statement failed as an acknowledgment sufficient to toll the statute of limitations. Johnson Neurological Clinic, Inc. v. Kirkman, 121 N.C. App. 326, 465 S.E.2d 32, 1996 N.C. App. LEXIS 6 (1996).

For cases as to recovery of real property sold for nonpayment of taxes under former subdivision (10) of this section, see Lyman v. Hunter, 123 N.C. 508 , 31 S.E. 827, 1898 N.C. LEXIS 97 (1898); Kivett v. Gardner, 169 N.C. 78 , 85 S.E. 145, 1915 N.C. LEXIS 15 3 (1915); Jordan v. Simmons, 169 N.C. 140 , 85 S.E. 214, 1915 N.C. LEXIS 161 (1915); Ruark v. Harper, 178 N.C. 249 , 100 S.E. 584, 1919 N.C. LEXIS 432 (1919); Smith v. Allen, 181 N.C. 56 , 106 S.E. 143, 1921 N.C. LEXIS 15 (1921); Price v. Slagle, 189 N.C. 757 , 128 S.E. 161, 1925 N.C. LEXIS 397 (1925); Bailey v. Howell, 209 N.C. 712 , 184 S.E. 476, 1936 N.C. LEXIS 325 (1936).

Action for Permissive Waste Barred. —

Three-year statute of limitations for permissive waste of property which was the subject of a life estate applied to nephew’s claim against the decedent where the nephew was aware of the property deterioration seven years prior to the decedent’s death but where the nephew did not bring the action until the date of the decedent’s death. McCarver v. Blythe, 147 N.C. App. 496, 555 S.E.2d 680, 2001 N.C. App. LEXIS 1174 (2001).