Aldridge v. . Dixon

ClabKSON, J. For a decision of tbis action -we think it necessary to consider only one aspect of tbis controversy: Was plaintiff’s action barred by tbe ten-year statute of limitations, O. S., 445? We think so. In Moore v. Charlotte, 204 N. C., 37 (39), is tbe following: “Where tbe defendant properly pleads a statute of limitations the burden is on tbe plaintiff to show that tbe action was brought -within the time limit fixed by tbe statute pleaded, or in other words it is not barred by tbe statute that is pleaded. Tillery v. Lumber Co., 172 N. C., 296; Marks v. McLeod, 203 N. C., at p. 258-9.” Wilkes County v. Forester, 204 N. C., 163 (165) ; Drinkwater v. Tel. Co., 204 N. C., 224. Tbe plaintiff in her brief says: “Tbe right of tbe plaintiff to enforce her lien upon tbe land is barred only in ten years from tbe signing of tbe decree of confirmation, and tbe decree of confirmation was signed in 1925, and tbis action was instituted in August, 1932. Therefore, tbe defendants’ plea of tbe ten-year statute avails them nothing. It may be contended by tbe defendants and it was so argued by them in tbe court below, that tbe charge wbicb plaintiff seeks to enforce is a charge of owelty of partition. Even if tbe court should so construe tbis charge it is enforceable as such at any time within ten years after tbe signing of tbe decree of confirmation. McIntosh, sec. 940, p. 1065; Ex Parte Smith, 134 N. C., 495; Herman v. Watts, 107 N. C., 649.” *483 We set forth wliat this Court said in Smith, Ex Parte, supra, at p. 500-1: “We cannot see why the statute should not apply. It is true the charge rests upon the land alone, and it has been said that the land is the debtor and that there is no personal liability of its owner. But how can this affect the question one way or another. The statute, whether of presumptions or limitations, operates against the actor or the party who must seek to apply the remedy and it affects only the remedy. If, therefore, he who has the right to enforce the charge against the land delays in doing so for the time limited by the statute, the bar operates without regard to the particular nature of the charge or lien which is to be enforced or eren to the form of the remedy. It is a familiar principle that the statute of limitations affects not the right but the remedy. Besides, so far as the nature of the lien or charge is concerned, if we consider the matter with reference to that alone and without regard to the remedy, the case comes not only within the spirit but within the letter of the statute, which decree shall be barred if it is not brought within ten years from the date of the rendition of the same.” Lilly v. West, 97 N. C., 276 (279); McLeod v. Williams, 122 N. C., 451; Bank v. Swink, 129 N. C., 255; Hyman v. Jones, ante, 266. The plaintiff testified, in part: “After the division of the land under the petition recorded 15 December, 1920, and recorded in orders and decrees, K, pages 16 to 19, each one of the children went into possession of his respective share of land under said petition, that is, all that were of age. . '. . My son, G-. T. Aldridge, went into possession of his share allotted to him in the fall of 1920, right after it was divided. He remained in possession until 1931, when he died.” The plaintiff contends that: “The defendants, in pleading the ten-year’ statute, evidently overlooked the fact that the only decree on record confirming the division was rendered in 1925, from which time the statute would begin to run.” In answer, the defendants in their brief say: “It is apparent, therefore, that counsel for the plaintiff have switched their position considerably since the trial of this cause as will appear from their brief in that they now take the position that the proceeding under which they claim was begun in 1925. They undoubtedly see that if their first position was insisted upon that the statute of limitation bars their claim for more than ten years has elapsed since the first order of confirmation. The second proceeding referred to in 1925, as will appear from the complaint, was simply in the nature of reinstating and supplying the lost papers for the purpose of recording same.” The summons in this action was issued 15 August, 1932. The record discloses that the petition for partition was filed in November, 1920, and plaintiff testified that G-. T. Aldridge went into possession of his *484 share allotted to him in the fall of 1920, right after it was divided. The record also discloses “showing their division of said lands made during the year 1920.” We are bound by the record, it imports verity and we cannot go behind it. “The Supreme Court, on appeal, is bound by the record.” Higgs-Taft Furniture Co. v. Clark, 191 N. C., 369; Fochtman v. Greer. 194 N. C., 674. It is a serious question if the other defenses set up by defendant are not also available, but we need not consider them, as the defense of the statute of limitation bars plaintiff’s right to recovery. In law we see No error.