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Guilford County and City of High Point v. Boyan

Filed: August 21, 1979.

GUILFORD COUNTY AND CITY OF HIGH POINT
v.
CLARENCE C. BOYAN AND WIFE, MARGARET W. BOYAN; LEE F. STACKHOUSE, TRUSTEE FOR CLARENCE C. BOYAN AND WIFE, MARGARET W. BOYAN; JIMMY D. RIDGE; AND PIEDMONT HARDWOOD LUMBER COMPANY



Appeal by plaintiff City of High Point from Hatfield, Judge. Judgment entered 17 October 1977 and Order entered 9 November 1977 in District Court, Guilford County. Heard in the Court of Appeals at Winston-Salem 15 November 1978.

Parker, Judge. Judges Martin (Robert M.) and Erwin concur.

Parker

G.S. 160A-233(d) provides:

(d) No city may maintain an action or proceeding to enforce any remedy for the foreclosure of special assessment liens unless the action or proceeding is begun within 10 years from the date that the assessment or the earliest installment thereof included in the action or proceeding became due. Acceleration of installments under subsection (b) shall not have the effect of shortening the time within which foreclosure may be begun, but in that event the statute of limitations shall continue to run as to each installment as if acceleration had not occurred.

The intent of the legislature controls our interpretation of this statute. Taken out of context and read literally, the first sentence of G.S. 160A-233(d) appears to provide that if the foreclosure action includes any installment payments falling due more than ten years prior to institution of the action, maintenance of the entire action is completely barred even as to those installments falling due within the limitation period. thus interpreted, the first sentence has an effect which is both illogical and contrary to the way in which statutes of limitations normally operate. The inherent illogic of the sentence's literal meaning, the sentence's context, and the statute's history all show, and we find, that the legislature did not intend to bar an action for installments of assessments falling due within the ten-year limitation period, even when installments which became due more than ten years before the institution of the action were sought to be included in the action.

The second sentence of G.S. 160A-233(d) makes plain that the legislature intended the statute of limitations to run anew from the due date of each individual installment. G.S. 160A-233(d) provides that "[i]f any installment of an assessment is not paid on or before the due date, all of the installments remaining unpaid shall immediately become due and payable. . . ." The second sentence

of G.S. 160A-233(d) provides that this acceleration shall not have the effect of shortening the limitation period, "but in that event the statute of limitations shall continue to run as to each installment as if the acceleration had not occurred." (Emphasis added.) The second sentence of G.S 160A-233(d) would be meaningless if the first sentence were interpreted to mean that the statute of limitations runs as to all installments from the due date of the earliest installment sued for.

The statute's history, always an important tool in statutory interpretation and here made particularly significant by G.S. 160A-2, shows a legislative intent for a running of the limitation period as to each installment from the due date of that installment. The previous version of this statute of limitations, enacted by 1929 Public Laws, ch. 331, s. 1(b), former G.S. 160-93, read:

No statute of limitation. . . shall bar the right of the municipality to enforce any remedy provided by law for the collection of the unpaid assessments . . . save from and after ten years from default in the payment thereof, or if payable in installments, ten years from the default of any installments.

In somewhat clearer language than the present statute, former G.S. 160-93 provided for a limitation period of "ten years from the default of any installments," or, as our Supreme Court interpreted it in Charlotte v. Kavanaugh, 221 N.C. 259, 20 S.E.2d 97 (1942), ten years from the default of each installment.

Former G.S. 160-93 is given continuing importance for interpretation of G.S. 160A-233(d) by G.S. 160A-2 which provides, "The provisions of this Chapter, insofar as they are the same in substance as laws in effect as of December 31, 1971, are intended to continue such laws in effect and not to be new enactments." (Emphasis added.) G.S. 160-93 was repealed effective 1 January 1972. 1971 Sessions Laws, ch. 698, s. 2. The limitation provision of G.S. 160A-233(d) is the same in substance as the limitation provision of former G.S. 160-93. In accordance with G.S. 160A-2, we ...


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