Opinion
(9 October, 1900.)
LIMITATIONS, STATUTE OF — Pleading — Demurrer — Answer.
The statute of limitations can not be set up by demurrer, but must be specifically pleaded in the answer.
ACTION by J. G. King against A.M. Powell and another, to enforce a judgment lien against certain land, heard by Judge H. R. Starbuck, at March Term, 1900, of WARREN. From a judgment sustaining a demurrer to the complaint, the plaintiff appealed.
Cook Green, for plaintiff.
Pittman Kerr, for defendant.
The plaintiff had a docketed judgment against W. W. Powell, who conveyed his tract of land to A.M. Powell and John Powell after said judgment was docketed. The plaintiff institutes this action for an order to sell said land to satisfy said judgment. The defendants demur to the complaint on the ground that it appears therein that the plaintiff's lien had expired and was lost by the lapse of time. The demurrer was sustained, his Honor holding that the complaint stated no cause of action against the defendants. The plaintiff excepted, and appealed.
We express no opinion on the point decided by his (11) Honor, for the reason that the statute of limitations can not be set up by demurrer. Bacon v. Berry, 85 N.C. 124. The objection that the action was not commenced within the time limited can only be taken by answer. Code, sec. 138; Green v. Railroad Co., 73 N.C. 524; Kahnweiler v. Anderson, 78 N.C. 133; Bank v. Loughran, 122 N.C. 668. The Code requires the statute of limitations to be specially pleaded, whether the cause of action be legal or equitable. Guthrie v. Bacon, 107 N.C. 337.
Reversed.