Marks v. McLeod

Stacy, C. J.

That Alf. H. McLeod was acting as agent of his wife in signing the contract of sale may be presumed from the subsequent ratification or execution of the deed undertaking to convey the timber in accordance with the prior agreement.

Starkweather v. Gravely, 187 N. C., 526 , 122 S. E., 297 . But it is doubted whether the evidence shows the 50-acre tract was intended to be included in the contract of sale. The description in the deed is by metes and bounds, and it is not included therein. Plaintiffs say they did not know of its omission from the deed until their grantee was stopped from cutting the timber in July, 1917.

Defendant says the 50-aere tract was never intended to be included in the contract, or deed; that there was no mistake or fraud in the transaction; that the plaintiffs knew, or by the exercise of ordinary care should have discovered, upon the delivery of the deed, that it was insufficient to convey said tract, and that she is entitled to the equitable repose and beneficent peace which the three years statute of limitations gives her.

The defendant’s position is supported by the decisions in Sinclair v. Teal, 156 N. C., 458 , 72 S. E., 487 , and Peacock v. Barnes, 142 N. C., 215 , 55 S. E., 99 .

The defendant having pleaded the statute of limitations, the burden was on the plaintiffs to show that their suit was brought within three years from the time of the accrual of the cause of action or that otherwise it was not barred. This has been the prevailing rule with us as to the burden of proof where the statute of limitations is properly pleaded.

Phillips v. Penland, 196 N. C., 425 , 147 S. E., 731 ;

Jackson v. *259 Harvester Co., 188 N. C., 275 , 124 S. E., 334 ;

Rankin v. Oates, 183 N. C., 517 , 112 S. E., 32 ;

Tillery v. Lumber Co., 172 N. C., 296 , 90 S. E., 196 .

A careful perusal of the record leaves us with the impression that the correct result has been reached.

Affirmed.