Bernhardt v. . Hagamon

57 S.E. 222, 144 N.C. 526, 1907 N.C. LEXIS 177

• Court: Supreme Court of North Carolina
• Decided: May 7, 1907
• Status: Published

Opinion

Clark, C. J.

In 1881, F. B. Cottrell executed a deed in trust to John A. Boyden to secure certain notes due to Mary L. Boyden. Soon thereafter the trustee entered into possession, which has been held by him and by his co-defendant, Uagamou. (to whom he conveyed a part of the land in 1899), without any claim or demand from Cottrell. In July, 1906, the plaintiff procured a conveyance from Cottrell and soon thereafter brought this action for an accounting, and asking an injunction against cutting timber.

The ten years’ statute (Rev., sec. 391, 4) is pleaded and is so complete a defense that no discussion is necessary. Edwards v. Tipton, 85 N. C., 479; Simmons v. Ballard, 102 N. C., at p. 109. The trust deed provided that Cottrell should retain possession until default made. The trustor’s right of action for redemption of the mortgage and an accounting accrued as soon as the trustee took possession, and became barred in ten years.

The evidence of Cottrell, witness for the plaintiff, showed that during the twenty-five years after Boyden took possession, and up to the beginning of this action, Cottrell had made no payment on the debt, nor any demand for possession of the property, nor for an accounting. The Court properly sustained the demurrer to the evidence (Rev., sec. 383).

No Error.