Emanuel v. Emanuel

338 S.E.2d 620, 78 N.C. App. 799, 1986 N.C. App. LEXIS 2010

• Court: Court of Appeals of North Carolina
• Decided: January 21, 1986
• Docket: No. 8516DC520
• Status: Published

Opinion

ARNOLD, Judge.

Plaintiff contends that her complaint sets forth a cause of action for the imposition of a constructive trust governed by a ten-year statute of limitations. The trial court concluded that plaintiffs action was one based on fraud and/or undue influence. Therefore the court applied the three-year statute of limitations as set out in G.S. 1-17 and G.S. 1-52 in granting defendants’ motion for summary judgment.

We hold that neither plaintiff nor the trial court have relied upon the appropriate statute of limitations, but that even so the trial court properly granted defendants’ motion for summary judgment.

Plaintiffs complaint alleges a cause of action to set aside a deed based on her incompetence at the time of the execution of the deed. Ellington v. Ellington, 103 N.C. 54, 9 S.E. 208 (1889). The deed of one non compos mentis, that is of one who is incompetent or insane, is voidable and not void. Id.; Wadford v. Gillette, 193 N.C. 413, 137 S.E. 314 (1927).

Assuming the deed to be voidable, the possession under it, as color of title merely, in the absence of any indication of imperfection or infirmity apparent upon its face, would ripen into a good title after the expiration of seven years, unless within three years after the “coming of sound mind’’ . . ., the person so entitled commence his suit. . . .”

Ellington, 103 N.C. at 56-57, 9 S.E. at 208-09.

The cause of action to set aside a deed accrues upon the execution of the deed. Id. A cause of action to set aside a deed executed by a person non compos mentis must be brought within seven years from the date of execution, or within three years next after the removal of the disability, whichever period expires later. Id.; see also G.S. 1-17 and G.S. 1-38.

In the case at bar plaintiff brought her action seven years and approximately one month after the execution of the deed, and approximately four and one-half years after plaintiff admits the disability was removed. Thus, plaintiffs cause of action is barred by the appropriate statute of limitations as herein set forth.

Summary judgment in favor of defendants is

Affirmed.

Judges Wells and Parker concur.