Cheshire v. Carolina Power & Light Co.
Cheshire v. Carolina Power & Light Co.
Opinion of the Court
In one of its assignments of error, defendant contends that plaintiffs claim is barred under the applicable statute of limita
The facts as they appeared in the materials properly considered by the trial court show that defendant offered to purchase a tract of land in Person County from Ruth Harris Crump-ton. Ruth Crumpton owned a life estate in the property and could not therefore convey a marketable fee simple title to defendant. As part of the consideration to be paid by defendant for the property, defendant offered to pay all costs associated with the legal proceedings necessary to clear title to the property. Plaintiff was employed to represent three persons claiming an interest in the property. A special proceeding was brought before the Clerk of Superior Court of Person County to authorize the sale of property. Plaintiff’s clients were named as respondents in the petition for sale. The special proceedings resulted in an order of sale by the Clerk on 7 May 1975. On 2 June 1975, the Clerk’s original order was confirmed by the Clerk and approved by a Superior Court Judge, The Commissioner, who was authorized and directed by the Clerk’s order to complete the sale, filed his final account on 20 August 1975, and the final account was approved by the Clerk on 21 August 1975. The final account discloses that a deed to the property was executed and delivered to defendant. Defendant paid the purchase price required by the Clerk’s order of sale, and the Commissioner paid the net funds received from the sale to the Clerk for final distribution.
Subsequent to the final accounting to the Clerk, plaintiff continued to represent his clients with respect to their interest in the proceeds of the sale. Plaintiff contends that defendant obligated itself to pay legal fees incurred in the special proceedings from beginning to end. Defendant contends that its obligations as to legal fees culminated when clear title was established and that it is not obligated for any legal fees incurred in proceedings involving the distribution of the proceeds of the sale. If defendant is right, plaintiff’s cause of action accrued when the final account was filed and approved. The answer to this question is to be found in the provisions of the option agreement, where defendant made its promise upon which plaintiff relies. The operative paragraph of the option agreement is as follows:
*469 In the event that, in the opinion of counsel for COMPANY, the parties of the first part shall be unable to convey merchantable title to said lands at the time COMPANY exercises this option and makes tender of payment as provided in the preceding paragraph, the parties of the first part agree to cooperate with Company in removing any defects in title including the institution of appropriate legal proceedings, the last of which will be paid for by COMPANY.
Our Supreme Court, in Crumpton v. Crumpton, 290 N.C. 651, 227 S.E. 2d 587 (1976) made it clear that the statutory scheme as set forth in G.S. 41-11
In its answer, defendant properly asserted the statute of limitations as an affirmative defense. The undisputed facts properly before the trial court show that plaintiffs claim was barred,
Reversed and remanded.
. Providing for the sale, lease or mortgage of estates in land in case of remainders.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.