Cheshire v. . Drake

"WinboRNE, J. This is the pivotal question on this appeal: Where the bid for real estate offered at a sale held under authority of an execution within the period of ten years next after the date of rendition of the judgment, upon which the execution issued, is raised and resales are ordered successively under provisions of 0. S., 2591, as amended, by which the final sale so ordered takes place on a date after the expiration of said period of ten years, do such orders have the effect of prolonging *582 the statutory life of lieu of the judgment within the provisions and the meaning of 0. S., 614? The answer is No. The statute, C. S., 2591, as amended by Public Laws 1931, chapter 69, and by Public Laws 1933, chapter 482, applicable to sales (1) in the foreclosure of mortgages or deeds of trust on real estate, (2) by order of court in foreclosure proceedings either in the Superior Court or in actions at law, (3) publicly by an executor, administrator, or administrator with the will annexed, (4) by any person by virtue of the power contained in a will, or (5) “under execution duly issued,” provides, in pertinent part, that (a) the sale shall not be deemed to be closed under ten days; (b) that if in ten days from the date of the sale, the sale price be increased as there specified, “the mortgagee, trustee, executor, or person offering the real estate for sale shall reopen the sale of said property and advertise the same in the same manner as in the first instance”; (c) that when the bid or offer is so raised, and the amount paid to the clerk, he shall issue an order to the mortgagee or ..other person and require him to advertise and resell such real estate; (d) that resales may be had as often as the bid may be raised in compliance with this section; and (e) that “upon final sale of the real estate, the clerk shall issue his order to the mortgagee or other person, and require him to make title to the purchaser.” Sales of real estate under executions were brought within the provisions of this act by the amendment contained in chapter 482, Public Laws 1933, which became effective on 13 May, 1933. However, no amendment appears to have been made to C. S., 614, at that or any subsequent time. The lien of a judgment created upon real estate by the provisions of C. S., 614, is for a period of ten years from the date of the rendition of the judgment. “But the time during which the party recovering or owning such judgment shall be, or shall have been, restrained from proceeding thereon by an order of injunction, or other order, or by the operation of any appeal, or by a statutory prohibition, does not constitute any part of the ten years aforesaid, as against the defendant in such judgment . . .” There is no other savings clause in the statute and, as stated in Pipkin v. Adams, 114 N. C., 201, 19 S. E., 105, this Court has adopted the principle that it is in the interest of public policy that this statute should be strictly construed. See Spicer v. Gambill, 93 N. C., 378. And the uniform holding of this Court is that, under the provisions of C. S., 614, the lien of a judgment ceases to exist at the expiration of ten years — unless that time be suspended in the manner set out in the statute. See Lupton v. Edmundson, 220 N. C., 188, 16 S. E. (2d), 840, where the decisions on the subject are assembled. It is well settled, too, as expressed by Smith, G. J., in Spicer v. Gambill, supra, that “to preserve the judgment lien the process to enforce and render it effectual *583 must be completed by a sale within the prescribed time,” and “if delayed beyond these limits unless interrupted in the manner pointed out in section 435 of the Code (now C. S., 614), the lien is gone.” Lupton v. Edmundson, supra. Moreover, while execution is the statutory means provided in this State for the enforcement of a judgment requiring the payment of money, C. S., 663, the decisions bearing upon the subject uniformly hold that the issuance of an execution does not prolong the life of a lien, nor stop the running of the statute of limitation, the bar of which is complete when the ten years have expired. Lupton v. Edmundson, supra; Barnes v. Fort, 169 N. C., 431, 86 S. E., 340; Hyman v. Jones, 205 N. C., 266, 171 S. E., 103. In the light of these principles, it is clear that the present case fails to come within the savings clause contained in C. S., 614, by which the statute of limitation is tolled. The record fails to show that plaintiff has been restrained by any injunction, or other order, or by operation of any appeal, or by any statutory prohibition, from proceeding to enforce his rights under the judgment against defendants at any time within ten years from the date of the rendition of the judgment. And the fact that plaintiff elected to wait until more than nine years and nine months from the date of the rendition of the judgment had expired before putting in motion the statutory machinery for the enforcement of the lien of his judgment, and is then confronted with the provisions of C. S., 2591, made applicable in 1933 to sales under execution authorizing resales upon'bids being raised, by reason of which final sale is not consummated until after the full ten years have expired, is not a restraint within the meaning of the provisions of C. S., 614. We must construe the statutes as they are written. The conclusion thus reached makes it unnecessary to pass upon other questions debated, and we do not do so. But for reasons stated, the judgment below is Eeversed. -