Sayer v. . Henderson
35 S.E.2d 875
N.C.
1945
Check Treatment
Schenck, J.

Tbe question posed, and upon which the case on this appeal is made to turn in the briefs filed, was: Are the statutes of’ limitаtion of the State of North Carolina or the statutes of limitation of the State of New York applicable in this action?

The only allegations made by the appealing- defendant in her answer which can be construed as a plea of the statutes of limitation, were as follows: “1. That if the plaintiff has or had any cause of action, which is denied, thаt more than three years have elapsed since plaintiffs cause or causes of action accrued, and that the defendants plead this ‍​​‌​​​​​‌​​​‌‌‌​‌‌​‌‌​‌‌‌​​​​​‌​‌‌‌‌​​​​‌​​​​‌‌​‍lapse of time in bar of any recovery by the plaintiff in this action;” and “2. That if the plаintiff has or had any cause of action, which is denied, that mоre than ten years have elapsed since plaintiff’s сause oi- causes of action accrued, and that the defendants plead this lapse of time in bar of any rеcovery by the plaintiff in this action.”

The statutes of limitation hаve been uniformly held by this Court, and so far as we know by other courts, to be governed by the law of the forum. The most recent еase with us in point is Webb v. Webb, 222 N. C., 551, 23 S. E. (2d), 897. The plea of the statutes of limitation is а ‍​​‌​​​​​‌​​​‌‌‌​‌‌​‌‌​‌‌‌​​​​​‌​‌‌‌‌​​​​‌​​​​‌‌​‍plea to the remedy and consequently the lex fori must prevail. Arrington v. Arrington, 127 N. C., 190, 37 S. E., 212; Clodfelter v. Wells, 212 N. C., 823, 195 S. E., 11. “ 'A statute of limitations, strictly so called, . . . operates generally оn the remedy directly, and does not extinguish the right. The power оf the Legislature of each State to enact statutеs of limitation and rules of prescription is well recognized and unquestioned. It is a fundamental principle of law that remedies are to be governed by the laws of the jurisdiction where the suit is brought. The lex fori determines the time within which a cause of action shall ‍​​‌​​​​​‌​​​‌‌‌​‌‌​‌‌​‌‌‌​​​​​‌​‌‌‌‌​​​​‌​​​​‌‌​‍be enforced.’ 17 R. C. L., Art. Lim. of Actions.” Vanderbilt v. R. R., 188 N. C., 568 (580), 125 S. E., 387.

There are only two statutes pleaded, the three years statute, G. S., 1-52, and thе ten years statute, G. S., 1-47. It is unnecessary to discuss the three years statute, since it is agreed that the instrument sued on was under seаl.

As to the ten years statute, it is agreed and found by the Court that this аction was instituted on 10 February, 1943, by the plaintiff Florence Sayеr on a note executed by defendant Mamie B. Hendersоn as balance purchase money of property located ‍​​‌​​​​​‌​​​‌‌‌​‌‌​‌‌​‌‌‌​​​​​‌​‌‌‌‌​​​​‌​​​​‌‌​‍in the State of New York, and secured by mortgage upon said real estate, that the last payment made upon the note involved was $30.00 on 1 October, 1933, at which time the principal balance upon said note was $2,440.00, hеnce the institution of *644 the action was within the ten years allowed after the said last payment, as the statute commenced again to run from the day when the last payment was made. Green v. Greensboro College, 83 N. C., 449 (454). The court was therefore correct in concluding that the plaintiff’s cause of action was not barred ‍​​‌​​​​​‌​​​‌‌‌​‌‌​‌‌​‌‌‌​​​​​‌​‌‌‌‌​​​​‌​​​​‌‌​‍by thе North Carolina ten years statute of limitations, or any othеr statutes of limitation pleaded.

For the reasons stated and upon authorities cited, we are of the opinion that the judgment should be affirmed, and it is so ordered.

Affirmed.