Newsome v. . Harrell , 168 N.C. 295 ( 1915 )

This is an action to recover owelty of partition, $350, and that the judgment be declared a lien on the land owned by the defendant.

On 17 December, 1902, the tenants in common divided the land by a voluntary partition into five shares, subject to the life estate of their father, and executed a division deed. The plaintiff drew lot No. 2 and his brother, Walter E. Newsome, drew lot No. 1, which was to pay lot No. 2 $350 owelty. Walter Newsome died and devised the lot No. 1 to his wife, the feme defendant. The life tenant died 1 December, 1907. The defendant pleads the statute of limitations, and the only question before the Court is, "Is the $350 charge barred by the statute of limitations?"

The procedure for enforcing the payment of owelty in a judicial proceeding is by execution. Ex parte Smith, 134 N.C. 495; 3 Pell's Revisal, sec. 2495; Laws 1911, ch. 9.

The procedure for enforcing the payment of owelty in partition by agreement is by action in the Superior Court. Sumner v. Early,134 N.C. 233; Keener v. Den, 73 N.C. 132.

Proceedings to enforce payment of owelty in judicial partition is barred by ten years statute of limitations. Ex parte Smith,supra. The existence of a life estate does not prevent the running (296) of interest or the statute of limitations except as to minors. Rev., 2497. Turpin v. Kelly, 85 N.C. 399.

Does the ten-year statute bar the collection of the charge when the partition is by agreement? Since it must be collected by action, the ten-year statute bars. Rev., 399. When the sum is a lien or a charge on land, the ten-years statute applies. Aston v. Galloway, 38 N.C. 126; Ricev. Rice, 115 N.C. 43; Allen v. Allen, 121 N.C. 328. The plaintiff was not prevented from bringing this action during the life estate.

If the sum sued for was simply a personal debt, the three years statute of limitations would apply. Rice v. Rice, supra. But this action is to enforce the charge upon the land, and no personal judgment can be rendered against the defendants or the personal representative of Newsome. Halso v.Cole, 82 N.C. 161; Waring v. Wadsworth, 80 N.C. 345. The personal representative is not necessary in this action to enforce the charge on the land. Lee v. Eure, 82 N.C. 428; s. c., 93 N.C. 5.

The headnote In re Ausborn, 122 N.C. 42, that the statute of limitations does not run against a charge upon land for owelty in partition, is corrected after full discussion in Ex parte Smith, supra.

The plea of the statute of limitations should have been sustained.

Reversed.

Cited: Morganton v. Avery, 179 N.C. 552; Cochran v. Colson,192 N.C. 664; Hughes v. Thomas, 199 N.C. 209; Hyman v. Jones, 205 N.C. 267.