
    SMITH EX-PARTE.
    (Filed March 29, 1904).
    1. PARTITION — Limitations of Actions — Owelty — Execution — The Oocié, secs. 186, 168, 15%, 158.
    
    The issuing of an execution on a decree charging owelty in partition is barred within ten years.
    2. PARTITION — Limitations of Actions — Otcelty—Actions.
    A proceeding for leave to issue execution on a judgment charging lands with owelty in partition is an “action” within the meaning of the statute of limitations.
    An ACTION ex-parte, by J. R. Smith and others, heard by Judge B. B. Peebles and a jury, at September Term, 1903, of the Superior Court of Wayne County.
    From a judgment against the petitioner, John S. Hamilton, he appealed.
    
      U. L. Stevens, for the petitioner.
    
      F. A. Daniels and W. G. Munroe, for the respondent, Asher Edwards.
   Walker, J".

This is a motion in a partition proceeding, formerly pending in the Court of Pleas and Quarter Sessions, to docket tbe same, and for leave to issue execution upon a judgment therein rendered, which charged one of the tracts of land with a sum of money to be paid to another tract for the purpose of effecting equality of partition.

At the November Term, 1861, partition was decreed and Lot No. 6 was assigned by the commissioners to Amelia Smith, subject, however, to a charge of $160.66 in favor fo Lot No. 1, which was assigned to John S. Hamilton, who now makes this motion. In the allotment, the commissioners, in awarding the sum to be paid by Lot No. 6 to Lot No. 1, used this language, “We do assess the boot before named to be paid or due whenever said dower right of Martha Hamilton shall cease upon the said land.” The report of the commissioners was confirmed by decree of the Court at February Term, 1862. Martha Hamilton died in 1878. Asher Edwards, who is the respondent in this proceeding, has acquired the title to Lot No. 1 by mesne conveyances from Amelia Smith and is now in possession of it. He has answered the petition of Hamilton by pleading, among other things not necessary to be stated, that the charge upon the land has been paid and that the right to enforce the same is barred by the statute of limitations. So far as it appears, he does not allege actual payment, but simply pleads payment and relies upon the lapse of time to sustain the plea, that is, he relies both upon the statute of presumptions and the statute of limitations. The pleas are in proper form, and the question is again presented whether the judgment or decree of a court charging one lot with a sum of money to be paid to the owner of another lot in order to equalize the division of land or for “owelty of partition,” can be affected either by the statute of presumptions or the statute of limitations.

Tbe judgment in this case was rendered in 1862 and, but for tbe provision inserted by tbe commissioners in tbeir report, wbicb we bave quoted, and wbicb, of course, was made a part of tbe decree when tbe report was in all respects confirmed (Bull v. Pyle, 41 Md., 421), tbe right of action to enforce payment of tbe charge would bave been deemed to bave accrued prior to August, 1868, if section 168 of Tbe Code bad not been repealed by tbe Act of 1891, chapter 113, as to actions begun after January 1, 1893. This proceeding was begun in 1903. If tbe right of action bad accrued prior to August, 1868, and section 136 of Tbe Code bad not been repealed, we think tbe statute of presumptions would bave applied to any proceeding instituted to enforce payment of such a charge upon tbe land by issuing execution on tbe judgment. In Ruffin v. Cox, 71 N. C., 253, it is said that certain authorities, wbicb are cited in tbe opinion, bold that there is no bar, either by tbe statute of presumptions or tbe statute of limitations in such cases, but this is not correct, as a reference to tbe cases cited will show, and it was not necessary to tbe decision of that case to pass upon tbe point. None of tbe cases cited in Ruffin v. Gox refer to tbe question in regard to tbe statute of limitations or statute of presumptions, except tbe case of Sutton v. Edwards, 40 N. C., 425, wbicb case has been erroneously cited several times since -it was referred to in Ruffin v. Cox for tbe proposition that tbe statute of limitations is not a good plea in such cases. In Dobbin v. Rex, 106 N. C., 444, tbe statute did not apply, because tbe land bad already been sold under an execution, and tbe plea was not available to tbe party who relied on it because it came too late. Tbe question was not presented in Wilson v. Lumber Co., 131 N. C., 163, as is stated by Clark, J., on page 167, nor did it become necessary to decide it in tbe case of In re Ausborn, 122 N. C., 42, because, in that case, as was said by Mont gomery, J., for tbe Court, there bad been no decree of confirmation and tbe statute could not bar, as tbe right to issue execution, or, in other words, to enforce tbe payment of tbe charge, bad not accrued, and tbe statute therefore had not commenced to run. Those cases were rightly decided and we approve them.

It has been supposed by some, that, because it was said in one or two of the older cases decided before 1868 that “there is no statutory limitation as a bar by which proceedings of the kind are governed,” it followed that lapse of time could not affect the right to issue execution upon such a judgment. This expression was used by Nash, J., in the leading case of Sutton v. Edwards, 40 N. C., 425, at page 428, but immediately afterwards he explains what is meant, namely, that there was no statute of limitations applicable to judgments at that time, as they were subject only to the statute of presumptions, under and by virtue of which there was a presumption of j>ayment or satisfaction of all judgments and decrees within ten years after the right to enforce them accrued. Rev. Code, chapter 65, section 18. He discusses the case with reference to the statute of presumptions and strongly intimates that it would' have defeated the plaintiff’s suit but for the fact that the charge rested upon the lot of an infant, and by the provision of the statute the sum charged was not due and payable until he attained his majority.

We must infer from the language of the Court in Sutton v. Edwards that, if the sum charged upon the lot of greater value had been due at the time the judgment was rendered, the plea of payment or satisfaction would have been sustained under the statute of presumptions in force at that time. The failure to distinguish clearly between the old law and the new in this respect, or between the statute of presumptions and the statute of limitations, has caused some apparent confusion in the cases upon this important subject, but we think they can all be easily explained and reconciled when this distinction is kept steadily in view and when each decision is restricted to the particular facts upon which it was based. In the case of In re Walker, 107 N. C., 340, the question was discussed by Merrimon, O. J., who wrote the opinion of the Court, and, while the Court held that prior to 1868 there was no statute of limitations that could operate as a bar in such cases, it strongly intimated that the statute of presumptions applied, though in that case it was found as a fact that the charge upon the land had not been paid or satisfied and the point therefore was only incidentally presented. But in Herman v. Watts, 107 N. C., 646, the question under discussion was directly involved and the Court held that, as the partition had been made and the charge imposed upon the land prior to 1868, the decree was subject to the statute of presumptions, and that as the plaintiff in the case had failed to rebut the presumption raised by the law, the Court should have instructed the jury to find in favor of the party who pleaded the payment. It was also held that the proper remedy for enforcing such charges is by execution, formerly by venditioni exponas, to be granted upon motion or petition in the original proceedings. Waring v. Wadsworth, 80 N. C., 345; Turpin v. Kelly, 85 N. C., 399; Halso v. Cole, 82 N. C., 161. It was intimated in Rice v. Rice, 115 N. C., 43, and decided in Allen v. Allen, 121 N. C., 328, that the statute of limitations will bar an action or proceeding to enforce payment of a charge by will upon land devised, if sufficient time has elapsed for the purpose.

It having been decided in Herman v. Watts that the statute of presumptions applied when the decree was made prior to 1868, it necessarily follows that the statute of limitations, which is but a substitute for the statute of presumptions, must now be a v.alid plea, and if tbe time fixed by tbe statute bas elapsed it will be a good and effectual bar to tbe motion for execution. Tbe two statutes are couched in substantially tbe same language, tbe only difference being tbat one raises a presumption merely of payment or satisfaction, while tbe other furnishes a complete bar.

We have already seen tbat tbe right to move for execution in this case accrued in 1878, according to tbe terms of tbe report and decree, as tbe sum charged upon tbe land was not due until tbe death of Mrs. Martha Hamilton (Terrell v. Cunningham, 70 Ala., 100), and even if this provision bad not been inserted in tbe report tbe result would not have been different, as tbe Act of 1891, chapter 113, repealed section 136 of Tbe Code, so tbat, while tbe statute of presumptions formerly applied, tbe statute of limitations now takes its place (Nunnery v. Averitt, 111 N. C., 394), provided tbe action or proceeding was commenced since January 1, 1893, which .is tbe fact in this case. If either statute therefore applies, it must be tbe statute of limitations.

We cannot see why tbe statute should not ap¡3ly. It is true tbe charge rests upon tbe land alone, and it bas been said tbat tbe land is tbe debtor and tbat there is no personal liability of its owner. But bow can this affect tbe question one way or another. Tbe statute, whether of presumptions or limitations, operates against tbe actor or tbe party who must seek to apply tbe remedy and it affects only tbe remedy. If therefore be who bas tbe right to enforce tbe charge against tbe land delays in doing so for tbe time limited by tbe statute, tbe bar operates without regard to tbe particular nature of tbe charge or lien which is to be enforced or even to tbe form of tbe remedy. It is a familiar principle tbat tbe statute of limitations affects not tbe right but tbe remedy. Besides, so far as tbe nature of the lien or charge is concerned, if we consider tbe matter with reference to tbat alone and without regard to the remedy, the case comes not only within the spirit but within the letter of the statute, which provides that an action on a judgment or decree shall be barred if it is not brought within ten years from the date of the rendition of the same, and this is a motion that an execution be issued upon a judgment or decree. The words of the statute are broad enough to include judgments or decrees in rem as well as those in personam. The charge or lien is created by the judgment and, when the judgment is barred or satisfied in fact or by presumption from lapse of time, it is gone, and the charge for owelty, which is merely an incident of it, ceases also to exist.

One question remains to be considered: Does the word “action,” which is used in the statute, include a proceeding of this kind, which is a motion for leave to,issue execution upon a judgment charging land with the payment of money for equality of partition? We think it does and it has been so decided. In McDonald v. Dickson, 85 N. C., 248, the question was directly presented and the Court held that the motion for leave to issue execution was a substitute for the ancient writ of scire facias, and that while the latter, in the main, was regarded as a continuation of the old suit, it was for some purposes a new action. The defendant is bound by the judgment, of course, as to all matters determined thereby and as to which he is finally concluded, but to the motion for an execution upon it he can set up any defense which has arisen since the judgment was rendered, and among the defenses so available is the statute of limitations if a sufficient time has elapsed since the rendition of the judgment to create a bar. In Lilly v. West, 97 N. C., 279, the Court says: “But not less fatal is the objection founded upon the limitation put upon the remedy. The bar is as effectual when it can be interposed by plea or answer to a motion to revive a dormant judgment that execution may issue, as to an independent action upon tbe judgment itself.” Tbis principle bas been repeatedly recognized and enforced by tbis Court. Berry v. Oorpening, 90 N. C., 395; Williams v. Mullis, 87 N. Cl., 159; Johnston v. Jones, 87 N. C., 393; McLeod v. Williams, 122 N. C., 451; Bank v. Swink, 129 N. C., 255. It can make no difference whether section 152 (subsection 1) or section 158 of Tbe Code applies. Tbe result will be tbe same in either case. Tbe provisions of section 158 are very broad and comprehensive and embrace any and all actions for relief not otherwise provided for in Tbe Code.

Tbe views we have expressed are sustained by decisions in other States upon statutes similar to ours. Railroad v. Trimble, 51 Md., 99; McQueen v. Fletcher, 22 S. C., 152; Leibert's Appeal, 119 Pa., 517; Terrell v. Cunningham, 70 Ala., 100. Tbe case of Jameson v. Rixey, 94 Va., 342, 64 Am. St. Rep., 726, is, in its facts, very much like tbe one under review, and tbe Court in discussing tbe question involved reached tbe same conclusion that we have in this case, and correctly, as we think, differentiated tbe cases heretofore decided in tbis Court, and which were cited in tbe opinion delivered in that case.

Tbe decision of tbe Court below was, in our judgment, free from any error.

No Error.  