Town of Morganton v. Avery

• Court: North Carolina Supreme Court
• Writing for the Court: BROWN, J.
• Citation: Town of Morganton v. Avery, 179 N.C. 551, 103 S.E. 138 (N.C. 1920)
• Decision Date: 12 May 1920
• Docket Number: 478.
• Parties: TOWN OF MORGANTON v. AVERY.

103 S.E. 138

179 N.C. 551

TOWN OF MORGANTON v. AVERY.

No. 478.

Supreme Court of North Carolina

May 12, 1920

Appeal from Superior Court, Burke County; Harding, Judge.

Action by the Town of Morganton against Mrs. Sallie Avery. From a judgment for defendant, plaintiff appeals. Affirmed.

S. J Ervin, of Morganton, for appellant.

Avery & Ervin, of Morganton, for appellee.

BROWN J.

This is an action commenced on the 1st day of February, 1917, to enforce a tax assessment or charge for paving certain sidewalks abutting on the lot of land of the defendant, under Private Laws 1885, c. 120, § 61, and subsequent amendatory statutes.

The plaintiff claimed a lien on said lot for one-half the cost of such paving, amounting to $87.51, with interest thereon from June 28, 1911, when said paving was done and completed.

The defendant pleaded that the cause of action of plaintiff was for a liability created by statute and was barred by the statute of limitations (Revisal, subsec. 2, § 395).

It is admitted that the work was completed in June, 1911, more than five years before the bringing of this action. The statute provides that within three years shall be brought "an action upon a liability created by statute, other than a penalty or forfeiture, unless some other time be mentioned in the statute creating it."

We are of opinion that the action is barred. The assessment is not a personal liability of the defendant, and could not be collected out of her personalty by execution. It is a liability created solely by statute, and does not arise ex contractu. It is not a personal liability of the owner of the land to be collected by execution; it is a statutory charge upon the land itself, and must be collected by proceedings in rem in a court having equitable jurisdiction unless some other legal method is provided by the statute. If the land benefited is insufficient in value to pay the assessment in full, the remainder cannot be collected out of the other estate of the landowner. Canal Co. v. Whitley, 172 N.C. 102 90 S.E. 1; Commissioners v. Sparks, 103 S.E. 142 this term; Raleigh v. Peace, 110 N.C. 32, 14 S.E 521, 17 L. R. A. 330.

Without the creative force of the statute, the charge upon the land could not be made. If the statute was repealed, the power to create the charge would be gone.

In Kirwin v. Nevin, 111 Ky. 682, 64 S.W. 647, it is held:

A statute "providing that an action upon a liability created by statute when no other time is fixed by the statute creating the liability shall be commenced within five years next after the cause of action accrued applies to an action to enforce a lien for the cost of a street improvement * * * made when the statute was in force; and, more than five years having elapsed between the time the lien was perfected by the acceptance of the work by the council and the time the action was instituted, the action was barred."

See Bristol v. Washington County, 177 U.S. 144, 20 S.Ct. 585, 44 L.Ed. 701.

We are of opinion that the two cases relied upon by the plaintiff do not support the contention that a street assessment is not a liability created by statute. The...