McNeary's Arborists, Inc. v. Carley Capital Group

406 S.E.2d 644, 103 N.C. App. 650, 1991 N.C. App. LEXIS 863

• Court: Court of Appeals of North Carolina
• Decided: August 6, 1991
• Docket: No. 9026SC887
• Status: Published

Opinion

PHILLIPS, Judge.

The trial court’s holding is erroneous, and we reverse it. For a deed of trust or other security instrument to have priority from the date of recordation as to obligations incurred after the instrument is recorded, G.S. 45-68(1) requires that the instrument show three things, one of which is:

c. The period within which such future obligations may be incurred, which period shall not extend more than 10 years beyond the date of the security instrument.

Under the explicit terms of First Federal’s deed of trust, the period within which Carley’s future obligations could be incurred expired on 3 March 1988. Thus, under the provisions of G.S. 45-68 the only obligations incurred by Carley that related back to the recording date of the deed of trust were those incurred through 3 March 1988, and the obligations incurred after that date did not have seniority over plaintiff’s intervening lien. The agreement later made by Carley and First Federal to extend the term in which obligations could be incurred did not affect plaintiff’s rights under the deed of trust as recorded.

The partial summary judgment in favor of defendants is reversed and the case remanded to the trial court for the entry of an order enforcing plaintiff’s lien against the sale proceeds held by the trustee.

In their brief defendant appellees argued two other questions but they were not raised in the trial court and cannot be considered.

Reversed and remanded.

Judges ARNOLD and WELLS concur.