Emanuel v. Emanuel, 8516DC520
| Docket Nº | No. 8516DC520 |
| Citation | 338 S.E.2d 620, 78 N.C.App. 799 |
| Case Date | January 21, 1986 |
| Court | Court of Appeal of North Carolina (US) |
Page 620
v.
Robert Lee EMANUEL and Verlene Emanuel.
Rogers & Bodenheimer by Hubert N. Rogers, III, Lumberton, for plaintiff-appellant.
McLean, Stacy, Henry & McLean by H.E. Stacy, Jr., Lumberton, for defendants-appellees.
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 plaintiff's action was one based on frand 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.
Plaintiff's 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...."
[78 N.C.App. 801] 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, plaintiff's cause of action is barred by the appropriate statute of limitations as herein set forth.
Summary judgment in favor of defendants is
Affirmed.
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Lorbacher v. Housing Authority of City of Raleigh, COA97-129
...(1986). The Court held that as a matter of law the conduct did not "exceed all bounds usually tolerated by decent society." Id. at 763, 338 S.E.2d at 620. Additionally, plaintiff fails to allege that defendants' conduct was intentional. Plaintiff's complaint merely states that defendants kn......
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Salt v. Applied Analytical, Inc., 915SC336
...that the policy manual was a part of her employment contract which was breached by her discharge to survive her motion." Id. at 762, 338 S.E.2d at 620. In Harris v. Duke Power Co., 319 N.C. 627, 356 S.E.2d 357 (1987), the North Carolina Supreme Court limited the rule in Trought to those spe......
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Vereen v. Holden, COA94-1150
...allegations that her employer's policy manual was part of her contract sufficient to state a claim for wrongful discharge. Id. at 762, 338 S.E.2d at 620. However, in Trought, the plaintiff was required to sign a statement that she had read the personnel manual and agreed to obey the regulat......
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Horne v. Cumberland Cnty. Hosp. Sys., Inc., COA12–1276.
...was premised on the plaintiff's assertion that her employer's policy manual had become part of her employment contract. Id. at 762, 338 S.E.2d at 620. The plaintiff in Trought alleged that (1) the defendant's policy manual provided that employees could be discharged only for cause; (2) when......
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Lorbacher v. Housing Authority of City of Raleigh, COA97-129
...(1986). The Court held that as a matter of law the conduct did not "exceed all bounds usually tolerated by decent society." Id. at 763, 338 S.E.2d at 620. Additionally, plaintiff fails to allege that defendants' conduct was intentional. Plaintiff's complaint merely states that defendants kn......
-
Salt v. Applied Analytical, Inc., 915SC336
...that the policy manual was a part of her employment contract which was breached by her discharge to survive her motion." Id. at 762, 338 S.E.2d at 620. In Harris v. Duke Power Co., 319 N.C. 627, 356 S.E.2d 357 (1987), the North Carolina Supreme Court limited the rule in Trought to those spe......
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Vereen v. Holden, COA94-1150
...allegations that her employer's policy manual was part of her contract sufficient to state a claim for wrongful discharge. Id. at 762, 338 S.E.2d at 620. However, in Trought, the plaintiff was required to sign a statement that she had read the personnel manual and agreed to obey the regulat......
-
Horne v. Cumberland Cnty. Hosp. Sys., Inc., COA12–1276.
...was premised on the plaintiff's assertion that her employer's policy manual had become part of her employment contract. Id. at 762, 338 S.E.2d at 620. The plaintiff in Trought alleged that (1) the defendant's policy manual provided that employees could be discharged only for cause; (2) when......