#### T. LACY WILLIAMS, Administrator of the Estate of JAMES H. THOMPSON, v. SARAH THOMPSON, CITY OF RALEIGH, COUNTY OF WAKE, and the Unknown Heirs of JAMES H. THOMPSON.

(Filed 26 February, 1947.)

1. Pleadings § 31—

On a motion to strike, the test of relevancj' of a pleading is whether the pleader has the right to offer in evidence at the trial the facts relied upon to sustain the plea, and if such facts, when established, constitute a cause of action or defense.

S. Same—

If the ultimate fact pleaded in a reply is not inconsistent with the cause of action alleged in the complaint and constitutes a defense, in whole or in part, to a plea for affirmative relief set up in the answer, it should not be stricken.

3. Pleadings § 13—

The right to reply is not restricted to cases in which defendant pleads a counterclaim, but a reply is proper if the answer alleges facts which, if established, entitles defendant to some relief. G. S„ 1-140; G. S., 1-141.

4. Limitation of Actions § 1—

Lapse of time does not discharge a liability but merely bars recovery.

5. Limitation of Actions § 15—

Statutes of limitations, except those annexed to the cause of action itself, must be pleaded.

6. Same: Pleadings § 13—

The petition for the sale of land to make assets allege the existence of a claim by the defendant municipality, without admitting its amount or validity. The municipality filed answer asserting a lien for taxes, street assessments, and other items, and prayed judgment therefor. *Held:*Plaintiff was entitled to set up the plea of the statute of limitations by way of reply to the answer.

*167Appeal by defendant City of. Raleigb from *Thompson, J.,*at October Term, 1946, of Wake.

Affirmed.

Special proceedings to sell land to make assets, beard on motion to strike plaintiff’s reply.

In bis petition plaintiff alleges tbat tbe City of Raleigb “has a claim of an undetermined amount against said estate for paving assessments and taxes.” Tbe City, answering, asserted a first lien for 1944 taxes in tbe total sum of $7.45, and a lien, second only to tbe lien for taxes, against tbe first tract described in the petition for street assessments in tbe sum of $295.71, with interest from 16 May, 1927, and a lien for charges for sewer connections in tbe amount of $24 and for water connections in tbe amount of $29.56, with interest from 16 May, 1927. It prays (1) for judgment for said amounts, (2) tbat said judgment be declared a specific lien on said property, and (3) for tbe appointment of a commissioner to make sale.

Tbe plaintiff, replying, pleads tbe ten-year statute of limitations in bar of said defendant’s right to recover tbe pleaded street assessments and sewer and water connection charges. Thereupon, said defendant moved to strike plaintiff’s reply “upon tbe grounds tbat 1. No new matter was pleaded by said defendant in its answer, and SECOND tbat no affirmative relief was prayed by tbe said defendant in tbe said answer.”

Tbe clerk denied tbe motion and defendant City of Raleigb appealed to tbe judge of tbe Superior Court. When tbe cause came on to be beard in tbe court below tbe judgment of tbe clerk was affirmed and said defendant appealed to this Court.

*Murray Allen for plaintiff, appellee.*

*P. PL. Busbee and John G. Mills, Jr., for appellant City of Raleigh.*

Barnhill, J.

On a motion to strike tbe test of relevancy of a pleading is tbe right of tbe pleader to offer in evidence at tbe trial tbe facts relied upon to sustain tbe plea which, if established, will constitute a cause of action or a defense. And so, if tbe ultimate fact pleaded in a reply is not inconsistent with tbe cause of action alleged in the complaint and constitutes a defense, in whole or in part, to a plea for affirmative relief set up in tbe answer, it should not be stricken. *Patterson v. R. R.,*214 N. C., 38, 198 S. E., 364; *Trust Co. v. Dunlop,*214 N. C., 196, 198 S. E., 645; *Pemberton v. Greensboro,*203 N. C., 514, 166 S. E., 396.

Tbe right to reply is not restricted to cases in which tbe defendant pleads a counterclaim. G. S. 1-140, 1-141. If it alleges facts, upon tbe proof of which tbe court should give some relief, it is properly filed. *Lumber Co. v. Edwards,*217 N. C., 251, 7 S. E. (2d), 497.

*168Tbe lapse of time does not discharge tbe liability. It merely bars recovery. *Insurance Co. v. Motor Lines, Inc.,*225 N. C., 588. Hence tbe statutes of limitations (except when annexed to tbe cause of action itself, *Hanie v. Penland,*193 N. C., 800, 138 S. E., 165) are not available to a litigant as a defense unless pleaded. *Insurance Co. v. Motor Lines, Inc., supra; New Hanover County v. Sidbury,*225 N. C., 679; *Motor Co. v. Credit Co.,*219 N. C., 199, 13 S. E. (2d), 230.

Here tbe petitioner alleges tbe existence of tbe City's claim without admitting its amount or validity. When tbe City filed an answer asserting a lien for taxes, street assessments, and other items, and prayed judgment therefor, tbe plaintiff, for tbe first time, was in a position to plead tbe bar of tbe ten-year statute of limitations. This plea was properly made by way of reply to tbe answer.

Tbe judgment below is

Affirmed.