Newsome v. Harrell

OiARK, C. J.

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 Valter E. Newsome drew lot No. 1, which was to pay lot No. 2 $350 owelty. Valter 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., 499 ; 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 yeárs statute of limitations.

Ex parte Smith, 134 N. C., *296 495. Tbe existence of a life estate does not prevent tbe running of interest or tbe statute of limitations except as to minors. Rev., 2497.

Turpin v. Kelly, 35 N. C., 399 .

Does tbe ten-year statute bar tbe collection of tbe charge when tbe partition is by agreement ? Since it must be collected by action, tbe ten-year statute bars. Rev., 399. When tbe sum is a lien or a charge on land, tbe ten-year statute applies.

Astor v. Galloway, 38 N. C., 126 ;

Rice v. Rice, 115 N. C., 43 ;

Allen v. Allen, 121 N. C., 334. Tbe plaintiff was not prevented from bringing this action during tbe life estate.

If tbe sum sued for was simply a personal debt, tbe three years statute of limitations would apply.

Rice v. Rice, 115 N. C., 43 . But this action is to enforce tbe charge upon tbe land, and no personal judgment can be rendered against tbe defendants or tbe personal representative of New-some.

Halso v. Cole, 82 N. C., 161 ;

Waring v. Wadsworth, 80 N. C., 345 . Tbe personal representative is not necessary in this action to enforce tbe charge on the land.

Lee v. Bure, 82 N. C., 428 ;

s. c., 93 N. C., 5 .

The headnote In re Ausborn, 122 N. C., 42 , that tbe statute of limitations does not run against a charge upon land for owelty in partition, is corrected after full discussion in Smith ex parte, 134 N. C., 497 .

Tbe plea of tbe statute of limitations should have been sustained.

Reversed.