Carter v. . Bost

184 S.E. 817, 209 N.C. 830, 1936 N.C. LEXIS 365

• Court: Supreme Court of North Carolina
• Decided: April 8, 1936
• Status: Published

Opinion

Per Curiam.

According to tbe admissions made on tbe argument, tbe plaintiff did not sign tbe note. This being true, tbe plaintiff was never bound by tbe note, either as principal or surety, and, therefore, tbe authorities cited by tbe plaintiff to tbe effect tbat actions against sureties on sealed instruments, not included in specific statutes, are ordinarily barred within three years by virtue of C. S., 441 (1), have no application to this case.

Tbe plaintiff having executed only tbe deed of trust on ber land as additional security for tbe debt, tbe only cause of action created by ber, in tbe event of default in payment, was one to foreclose tbe deed of trust against her land and not one for judgment against her personally — an action in rem, not in personam.

The period prescribed for the commencement of the foreclosure of a deed of trust under power of sale is “within ten years after the . . .

power of sale became absolute, or within ten years after the last payment on the same.” C. S., 436, 437 (3). There was no contention that the rights to foreclose the deed of trust on the plaintiff’s land is barred by the ten-year limitation, presumably for the reason that it appears that many payments on the debt were made within the ten-year period next preceding the commencement of this action.

Affirmed.