#### TOWN OF WENDELL v. F. H. SCARBORO and Wife, MRS. F. H. SCARBORO; E. T. SCARBORO and Wife, MRS. E. T. SCARBORO; and THE RENFRO-WHITLEY TOBACCO COMPANY, INC.

(Filed 4 May, 1938.)

Limitation of Actions § 11: Taxation § 40c — Amendment making true owner defendant is not continuation of original suit to foreclose tax certificate.

Action by plaintiff municipality to foreclose certain tax sale certificates was instituted against tbe owners named in tbe certificates witbin tbe time limited (C. S., 8037; Public Laws of 1929, cb. 204). It appeared that tbe owner named in tbe certificates bad lost title by foreclosure several years prior to tbe institution of tbe action and bad died; tbe purchaser at tbe foreclosure sale was made a party defendant by amendment over six months after tbe expiration of tbe time limited. Held,: Tbe amendment cannot effect continuity with the original action, and judgment dismissing action was proper.

Seawell, J., took no part in tbe consideration or decision of this case.

Appeal by plaintiff from Gowper, Special Judge, at February Term, 1938, of Wake. Affirmed.

Tbis was an action to foreclose certain tax sale certificates, beard upon agreed statement of facts. From judgment dismissing tbe action, plaintiff appealed.

W. H. Rhodes for plaintiff.

Arch T. Allen, Philip R. Whitley, and Thomas A. Banlcs for defendants.

*541Per Curiam.

Plaintiff instituted action to foreclose five tax sale certificates issued prior to 6 September, 1926, for taxes on described real property in Wendell for tbe years 1921 to 1925, inclusive. Tbe property bad been listed in tbe name of F. H. Scarboro, tbe then owner. However, title to said property bad vested in E. T. Scarboro (not a member of tbe same family), 8 July, 1925, by deed from tbe trustee following foreclosure sale under tbe power contained in a deed of trust executed by E. H. Scarboro and wife. Since 1925 E. T. Scarboro bas listed and paid tbe taxes on tbe property.

E. H. Scarboro died in 1928 leaving bim surviving five children and bis widow. Sbe and another qualified as administrators of bis estate. On 22 November, 1929, summons in this action, on tbe tax sale certificates, was issued, naming E. H. Scarboro and wife as tbe parties defendant, and served on Mrs. E. H. Scarboro. On 9 June, 1930, E. T. Scar-boro, by order, was made party defendant and summons and amended complaint served on bim. He filed answer, pleading, among other defenses, tbe several statutes of limitation. Under tbe statute tbe plaintiff bad until 1 December, 1929, to bring its action. A few days prior to that dead line this action was begun, but only E. H. Scarboro and wife were named defendants. At that time E. H. Scarboro bad been dead more than a year and bis widow bad no interest in tbe property. Thereafter, in June, 1930, tbe plaintiff could not by making E. T. Scar-boro a party defendant effect continuity with tbe original action against a deceased person so as to prevent tbe bar of tbe statute of limitations as to this answering defendant and bis grantee. C. S., 8037; Public Laws 1929, ch. 204; Hogsed v. Pearlman, ante, 240; Orange County v. Atkinson, 207 N. C., 593, 178 S. E., 91; Beaufort County v. Mayo, 207 N. C., 211, 176 S. E., 753.

Tbe ruling of tbe court below was correct, and tbe judgment dismissing tbe action is

Affirmed.

Sea well, J., took no part in tbe consideration or decision of this case.