
    JULIA ANN CARTER v. D. W. BOST, L. T. HARTSELL, Trustee, and GEORGE I. CARTER.
    (Filed 8 April, 1936.)
    Limitation of Actions A d — Right to foreclose deed of trust given as additional security by person not liable on note held governed by ten-year statute and not three-year statute.
    Plaintiff executed a deed of trust on her land as additional security for the principal’s debt, the principal having executed the note and a deed of trust on his lands. Plaintiff did not sign the note, and brought this action to have the deed of trust on her lands canceled as a cloud upon title, alleging that her liability on the note as surety was barred by the three-year statute of limitations, C. S., 441 (1). Held: Plaintiff was not liable in any capacity on the note, and the right of action in rem for foreclosure of the deed of trust upon her land upon default of the principal is not barred until the expiration of ten years after the power of sale becomes absolute, or after ten years from the last payment on the note. C. S., 436, 437 (3).
    
      Appeal from judgment sustaining demurrer entered by Clement, J., at September Term, 1935, of Rowan.
    Affirmed.
    This is an action to remove cloud from plaintiff’s title, instituted on 23 January, 1935. Tbe complaint is substantially to tbe effect tbat on 23 May, 1923, tbe defendant George I. Carter purchased from Ellen M. Bost a tract of land containing 128 acres, and borrowed from tbe defendant D. ~W. Bost tbe sum of $3,600 with wbicb to pay therefor; tbat on said date a deed of trust was executed by George I. Carter and bis wife (now deceased) and by tbe plaintiff and ber husband (now deceased) upon tbe said 128 acres, as well as upon a tract of 114 acres belonging to tbe plaintiff, to L. T. Hartsell, trustee, to secure a note for $3,600, payable to D. W. Bost, and representing tbe amount borrowed from him by George I. Carter; tbat tbe plaintiff signed tbe deed of trust with tbe understanding, and to tbe knowledge of all parties concerned, tbat she was signing only as surety, and tbat ber land included in said deed of trust should be bound only as surety; tbat tbe deed of trust was due and payable on 23 May, 1924, but was not paid at tbat time, and without tbe knowledge or consent of tbe plaintiff, and at tbe request of tbe defendant George I. Carter, tbe defendants Hartsell, trustee, and D. ~W. Bost, cestui que trust, granted to George I. Carter extensions from time to time for payment of interest and principal on said note; and tbat inasmuch as more than three years have elapsed since such extensions were granted, ber land is released from tbe operation of tbe deed of trust, but tbat said deed of trust constitutes a cloud upon ber title.
    After filing answer, tbe defendants demurred ore tenus upon tbe ground tbat tbe complaint failed to state facts sufficient to constitute a cause of action.
    Tbe court entered judgment sustaining tbe demurrer, from wbicb plaintiff appealed to tbe Supreme Court.
    
      R. Lee Wright for plaintiff, appellant.
    
    
      Hartsell ■& Hartsell for defendants, appellees.
    
   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.  