ERVIN, Judge.

Plaintiffs Ted L. Bissette and Mary Holly Bissette appeal from an order dismissing the complaint that they filed against Defendants Scott W. Rich and Laura K. Rich1 for failure to state a claim upon which relief could be granted. On appeal, Plaintiffs contend that the trial court erroneously dismissed their complaint on the grounds that they had adequately pled claims sounding in breach of an express trust and for the imposition of a constructive or resulting trust which claims were not barred by the applicable statute of limitations. After careful consideration of Plaintiff's challenges to the trial court's order in light of the record and the applicable law, we conclude that the trial court's order should be affirmed.

I. Factual Background

A. Substantive Facts

Moss Creek is a single-family residential development located in Guilford County. In 1987, the Moss Creek Homeowners Association filed a Declaration of Covenants, Conditions, and Restrictions which provided, in pertinent part, that no lot in the development "may be subdivided by sale or otherwise [so] as to reduce the total area of the Lot" except by written consent of the Association. Moss Creek Homeowners Ass'n, Inc. v. Bissette, 202 N.C. App. 222, 225, 689 S.E.2d 180, 183, disc. review denied, 364 N.C. 242, 698 S.E.2d 402 (2010) (Moss Creek I). As we noted in our opinion in Moss Creek I:

Moss Creek I, 202 N.C.App. at 225, 689 S.E.2d at 183. In other words, Plaintiffs originally owned Lot 6; however, after purchasing the adjoining lot, identified as Lot 8, they combined Lot 6 with part of Lot 8 before selling Defendants the remainder of Lot 8. Plaintiffs memorialized these transactions in documents titled Instrument of Combination and Exclusion Map.

On 18 May 2005, the Association and various individual Association members (the Moss Creek I plaintiffs) filed a complaint against Plaintiffs and Defendants in which they alleged that the transactions described above violated the restrictive covenant provision barring the subdivision of individual lots in Moss Creek. Moss Creek I, 202 N.C.App. at 225-26, 689 S.E.2d at 183. Subsequently, Defendants asserted a cross-claim against Plaintiffs for breach of warranty. On 6 September 2005, the parties to this case executed an agreement which provided, in pertinent part, that:

On 21 December 2005, Defendants entered into a consent judgment with the Moss Creek I plaintiffs under which the Moss Creek I plaintiffs dismissed their claim against Defendants and in which the deed between Plaintiffs and Defendants was declared to be valid and to convey title to the property transferred from Plaintiffs to Defendants in fee simple absolute.

On 7 June 2006, the Moss Creek I plaintiffs "filed [an] amended complaint ... [seeking] declaratory and injunctive relief against [Plaintiffs] ... for violating the restrictive covenants." Moss Creek I at 226, 689 S.E.2d at 183.2 On 29 December 2006, Judge Ronald E. Spivey entered an order determining that Plaintiffs had violated the restrictive covenants and that none of their defenses had merit. Id. On 12 February 2008, Judge James M. Webb entered an order declaring, in pertinent part, that the Instrument of Combination and the Exclusion Map, were "null and void" and directing that the "General Warranty Deed executed by [Plaintiffs] to [Defendants] ... [be] reformed to include all of Lot 8 ... to be effective April 28, 2005[.]" As a result, Judge Webb's order awarded Defendants ownership of Lot 8 in its entirety, including the portion that Plaintiffs had added to their lot and that was designated "Tract II" in the September 2005 agreement. On 4 March 2008, Judge Webb entered another order granting summary judgment in favor of the Moss Creek I plaintiffs with respect to "any remaining claims not previously resolved or adjudicated." Id.

Plaintiffs noted an appeal to this Court from various orders that had been entered during the course of the Moss Creek I litigation. On 2 February 2010, this Court filed an opinion in Moss Creek I affirming the orders invalidating the Instrument of Combination and Exclusion Map and vesting title in the entirety of Lot 8 in Defendants while overturning certain orders requiring Defendants to pay attorneys' fees to the Moss Creek I plaintiffs.

B. Procedural History

On 29 December 2011, more than three years and ten months after Judge Webb ordered that the deed from Plaintiffs to Defendants be reformed in such a manner as to vest title to the original Lot 8 in Defendants, Plaintiffs filed a complaint seeking relief based upon Defendants' refusal to grant Plaintiffs an easement as specified in the 6 September 2005 agreement. In their complaint, Plaintiffs asserted claims sounding in breach of fiduciary duty, constructive fraud, and breach of contract and sought the entry of an order requiring specific performance of the 6 September 2005 agreement. On 4 April 2012, Plaintiffs voluntarily dismissed their complaint against Defendants pursuant to N.C. Gen.Stat. § 1A-1, Rule 41. On 10 April 2012, Plaintiffs filed another complaint against Defendants in which they asserted claims sounding in breach of express trust, constructive fraud, and breach of fiduciary duty and sought the imposition of a resulting or constructive trust on the portion of Defendants' property that would have been subject to an easement in favor of Plaintiffs pursuant to the 6 September 2005 agreement. On 18 April 2012, Defendants filed a motion seeking dismissal of Plaintiffs' complaint pursuant to N.C. Gen.Stat. § 1A-1, Rule 12(b)(6) on the grounds that Plaintiffs' claims were barred by the three year statute of limitations applicable to actions arising from contract claims and asserting, in pertinent part, that:

A hearing was held with respect to Defendants' dismissal motion on 7 May 2012. During the course of this hearing, Plaintiffs expressly abandoned their constructive fraud and breach of fiduciary duty claims and indicated that they were only pursuing their claims for breach of express trust or the imposition of a constructive or resulting trust. On 11 May 2012, the trial court entered an order dismissing Plaintiffs' complaint for failure to state a claim upon which relief can be granted.3 Plaintiffs noted an appeal to this Court from the trial court's order.

II. Legal Analysis

A. Standard of Review

"The standard of review of an order granting a [motion to dismiss pursuant to N.C. Gen.Stat. § 1A-1, Rule 12(b)(6)] is whether the complaint states a claim for which relief can be granted under some legal theory when the complaint is liberally construed and all the allegations included therein are taken as true. On a motion to dismiss, the complaint's material factual allegations are taken as true. Dismissal is proper `when one of the following three conditions is satisfied: (1) the complaint on its face reveals that no law supports the plaintiff's claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff's claim.'" Burgin v. Owen, 181 N.C. App. 511, 512, 640 S.E.2d 427, 428-29 (citing Country Club of Johnston Cty., Inc. v. U.S. Fidelity & Guar. Co., 150 N.C. App. 231, 238, 563 S.E.2d 269, 274 (2002), and Oberlin Capital, L.P. v. Slavin, 147 N.C. App. 52, 56, 554 S.E.2d 840, 844 (2001), and quoting Wood v. Guilford Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002)), disc. review denied, 361 N.C. 425, 647 S.E.2d 98 (2007), cert. denied, 361 N.C. 690, 652 S.E.2d 257 (2007). On appeal from an order granting a motion to dismiss for failure to state a claim, this Court "conducts a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court's ruling on the motion to dismiss was correct." Page v. Lexington Ins. Co., 177 N.C. App. 246, 248, 628 S.E.2d 427, 428 (2006) (citation omitted).

"A statute of limitations defense may properly be asserted in a Rule 12(b)(6) motion to dismiss if it appears on the face of the complaint that such a statute bars the claim. Once a defendant raises a statute of limitations defense, the burden of showing that the action was instituted within the prescribed period is on the plaintiff. A plaintiff sustains this burden by showing that the relevant statute of limitations has not expired." Horton v. Carolina Medicorp, Inc., 344 N.C. 133, 136, 472 S.E.2d 778, 780 (1996) (citing Hargett v. Holland, 337 N.C. 651, 653, 447 S.E.2d 784, 786 (1994), Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985), and Little v. Rose, 285 N.C. 724, 727, 208 S.E.2d 666, 668 (1974)). We will now apply this standard of review to evaluate Plaintiffs' challenges to the trial court's order.

B. Scope of Issues to be Resolved on Appeal

The dispositive issues presented by this appeal are whether Plaintiffs' express trust claim was barred by the statute of limitations and whether Plaintiff sufficiently stated a claim for the imposition of a constructive or resulting trust. In order to make the first of these two determinations, we are required to decide whether Plaintiffs' complaint stated a valid claim for breach of an express trust or whether, on the other hand, Plaintiffs' complaint merely alleged a breach of contract claim. Although Plaintiffs suggest that the extent to which the 6 September 2005 agreement created a trust was not properly before the trial court and is not properly before us, we cannot agree with this contention.

At the hearing held with respect to their dismissal motion, Defendants argued that "the factual theory upon which the complaint is based, its only factual theory is breach of a contract," and that the "three-year statute of limitations bars any contract claims." In addition, Defendants argued that Plaintiffs had failed to state a valid claim for breach of an express trust, that Defendants had not acted as the settlors with respect to any trust, and that "the law is very clear that you can't have a trust unless ... the settlor has parted with something to someone as trustee." Finally, Defendants argued that the property in question was not subject to the imposition of a constructive trust or a resulting trust and that, "as far as the claims in issue, express trust, resulting trust, and constructive trust ... whatever we call it, it's a suit on a contract and a three-year statute [of limitations.]" In response, Plaintiffs argued that Defendants' assertion that they had failed to state a claim for breach of express trust should be ignored, stating that:

Similarly, Plaintiffs suggest in their brief that our review of the trial court's order should be limited to a determination of the date upon which Plaintiffs' claim for breach of express trust accrued, an argument which, if accepted, would require us to overlook the more fundamental issue of whether any sort of trust existed in the first place. In support of this contention, Plaintiffs assert, consistently with the position that they took before the trial court, that Defendants' dismissal motion "was based solely upon their contention that all of the Plaintiffs' claims were barred by the applicable statute of limitations," that "[n]o other ground for dismissal was asserted," that "[t]he parties agree that the three-year statute of limitations applies to Plaintiffs' cause of action to enforce an express trust," but that "the parties differ on when the cause of action for breach of the express trust accrued." We do not find this argument persuasive.

After carefully reviewing the record and the briefs, we conclude that the fundamental dispute between the parties with respect to the validity of Plaintiffs' express trust claim centers on whether the 6 September 2005 agreement served to create a trust, rather than the date upon which any cause of action which Plaintiffs were entitled to assert under the alleged trust accrued. In essence, the reason that Defendants argued that Plaintiffs' breach of express trust claim was time-barred was that Plaintiffs had not really asserted a breach of express trust claim at all. In view of the fact that the trial court expressly allowed this issue to be debated in the court below and the fact that this issue appears to be at the core of the controversy before us in this case, we conclude that the question of whether Plaintiffs' complaint states a claim for breach of an express trust is properly before us and that we should address this issue in the course of reviewing Plaintiffs' challenges to the trial court's order.

C. Breach of Express Trust

"`An express trust has been defined as a fiduciary relationship with respect to property, subjecting the person by whom the property is held to equitable duties to deal with the property for the benefit of another person, which arises as a result of a manifestation of an intention to create it.... To constitute this relationship there must be a transfer of the title by the donor or settlor for the benefit of another. The gift must be executed rather than executory upon a contingency.'" Bland v. Branch Banking & Tr. Co., 143 N.C. App. 282, 287, 547 S.E.2d 62, 66 (2001) (quoting Wescott v. Bank, 227 N.C. 39, 42, 40 S.E.2d 461, 462-63 (1946) (internal citation omitted)). Thus, "[b]y definition, the creation of a trust must involve a conveyance of property, and before property can be said to be held in trust by the trustee, the trustee must have legal title[.]" In re Estate of Washburn, 158 N.C. App. 457, 461, 581 S.E.2d 148, 151 (2003) (internal citations omitted). In other words, creation of an express trust "presupposes that [the settlor] has control of the subject matter of the trust which he desires to create, and contributes it by conveyance of the land with that intent[.]" Taylor v. Addington, 222 N.C. 393, 397, 23 S.E.2d 318, 321 (1942). For that reason, "property which the settlor cannot transfer cannot be held in trust, and where a settlor has no legal authority to convey legal title to property, putting said property into an irrevocable trust is ultra vires and the ostensible trust created thereby is consequently void ab initio." 76 Am Jur 2d, Trusts § 41. As a result, "an interest which has not come into existence or an expectation or hope of receiving property in the future cannot be held in trust." The Infinity Group, LLC v. Lucas (In re Lucas), 477 B.R. 236, 244 (Bankr. M.D.Ala.2012). In summary:

Jewish Community Ass'n v. Community Bank, 6 P.3d 1264, 1266-1267 (Wyo.2000) (citing Restatement of Trusts 2d § 79, and quoting Hilbert v. Benson, 917 P.2d 1152, 1156 (Wyo.1996)).

The 6 September 2005 agreement provided that, in the event that Defendants were to obtain ownership of "Tract II" at some point in the future, they would, at that time, grant Plaintiffs an easement applicable to that tract of property. At the time that the parties executed the 6 September 2005 agreement, Defendants had no interest in the property that was to be the subject of the easement. In light of that fact, Defendants had no power to transfer any right of any nature in Tract II at the time the 6 September 2005 agreement was signed. As a result of the fact that Defendants had no authority to transfer, and did not transfer, the res of the alleged trust at the time that the express trust in question was allegedly created, we conclude that the 6 September 2005 agreement did not result in the creation of an express trust, limiting any claims that Plaintiffs were entitled to assert in reliance on that agreement to a garden-variety breach of contract claim.

As Plaintiffs appear to concede, the statute of limitations applicable to breach of contract claims of the nature actually alleged in Plaintiffs' complaint had expired by the time that their complaint was filed. "In general, an action for breach of contract must be brought within three years from the time of the accrual of the cause of action. [N.C. Gen.Stat. § ] 1-52(1)[.] A cause of action generally accrues and the statute of limitations begins to run as soon as the right to institute and maintain a suit arises." Penley v. Penley, 314 N.C. 1, 19-20, 332 S.E.2d 51, 62 (1985) (citing Reidsville v. Burton, 269 N.C. 206, 152 S.E.2d 147 (1967) (other citation omitted)). Plaintiffs' complaint clearly indicates that Defendants obtained their right to see the creation of an easement in their favor applicable to Tract II on or about 12 February 2008, when Judge Webb ordered that the deed from Plaintiffs to Defendants be reformed to include all of Lot 8. However, Plaintiffs did not attempt to enforce any rights that they might have possessed under the 6 September 2005 agreement until 29 December 2011, almost four years after any claim that Plaintiffs might have been able to assert for breach of contract accrued. As a result, Plaintiffs' contract-based claim is clearly barred by the applicable statute of limitations.

In seeking to persuade us that their express trust claim against Defendants was not subject to dismissal, Plaintiffs argue that they adequately stated a claim for breach of an express trust. However, Plaintiffs have neither demonstrated that they are entitled to assert that an express trust can be created in the absence of a transfer of property nor even mentioned this deficiency in attempting to persuade us of the merits of their express trust claim. Instead, Plaintiffs simply "contend [that] the cause of action for breach of the express trust did not accrue until 23 November 2011, when all the Defendants repudiated and disavowed the trust agreement, and otherwise refused to record the Deed of Easement." In light of the fact that the 6 September 2005 agreement constituted a simple contract rather than an express trust, any claim that Plaintiffs might have been able to assert against Defendants under that agreement accrued on the date upon which Judge Webb determined that Defendants owned all of Lot 8 rather than on the date upon which Defendants expressly "repudiated" their obligations under the 6 September 2005 agreement. As a result, the trial court did not err by dismissing Plaintiffs' complaint for failure to state a claim for relief pursuant to N.C. Gen.Stat. § 1A-1, Rule 12(b)(6).

D. Constructive or Resulting Trust

Secondly, Plaintiffs argue that the trial court erroneously dismissed their request for the imposition of a constructive or resulting trust entitling them to an easement applicable to Tract II. Once again, we fail to find Plaintiffs' argument persuasive.

The circumstances in which the imposition of a constructive or resulting trust is appropriate are well-established.

Cury v. Mitchell, 202 N.C. App. 558, 560-61, 688 S.E.2d 825, 827 (quoting Roper v. Edwards, 323 N.C. 461, 464, 373 S.E.2d 423, 424-25 (1988) (internal quotations and citations omitted), disc. review denied, 364 N.C. 434, 702 S.E.2d 300 (2010)). Similarly,

Cury, 202 N.C.App. at 562-63, 688 S.E.2d at 827 (quoting Patterson v. Strickland, 133 N.C. App. 510, 519, 515 S.E.2d 915, 920 (1999) (quoting Mims v. Mims, 305 N.C. 41, 46, 286 S.E.2d 779, 783 (1982) (internal citation omitted), and Cline v. Cline, 297 N.C. 336, 344, 255 S.E.2d 399, 404-05 (1979))). The allegations set out in Plaintiffs' complaint fail to support the imposition of either a constructive or a resulting trust.

Although Plaintiffs assert that Defendants "acquired title to the balance of the original Moss Creek lot under circumstances which in equity obligate [Defendants] to hold title and exercise ownership for the benefit of [Plaintiffs], consistent with the Deed of Easement" and that "[e]quity should raise a resulting trust by reason of such circumstances," Plaintiffs have failed to allege facts that might support such a conclusion. Instead, the factual allegations set out in Plaintiffs' complaint establish that: (1) Plaintiff purchased an additional lot in the Moss Creek development and subsequently divided it, adding part of the new lot to their original home site and selling the remainder to Defendants; (2) Plaintiffs' actions violated the restrictive covenants applicable to Moss Creek, which explicitly preclude the subdivision of any lots in that development; and (3), as a remedy for Plaintiffs' violation of the Moss Creek restrictive covenants, the documents effectuating and evidencing these transactions were declared null and void and the deed in which Plaintiffs had granted Defendants a portion of the original lot was reformed so that Plaintiffs owned Lot 6 and Defendants owned Lot 8 as originally delineated. As a result, the factual allegations set out in Plaintiffs' complaint do not suffice to establish that Defendants obtained possession of Tract II as the result of any fraud, wrongdoing,4 or other circumstance that might support the imposition of a constructive or resulting trust.

In attempting to persuade us to reach a different conclusion, Plaintiffs cite Wilson v. Development Co., 276 N.C. 198, 211, 171 S.E.2d 873, 882 (1970), for the general proposition that a constructive trust may be the "proper remedy to prevent unjust enrichment." However, nothing in Wilson in any way suggests that the facts alleged in Plaintiffs' complaint rise to the level necessary to support the imposition of a constructive trust. In addition, Plaintiffs cite Guy v. Guy, 104 N.C. App. 753, 757-58, 411 S.E.2d 403, 405-06 (1991), and Mims, 305 N.C. at 59, 286 S.E.2d at 791 (1982), in support of their claims for the imposition of a constructive or resulting trust. However, neither Guy (holding that a complaint, in which the plaintiff alleged that he had conveyed certain real property to his son in exchange for a promise to reconvey the property after the plaintiff repaid a bank loan and that the defendant had refused to honor their bargain after the plaintiff had repaid the loan, stated a claim for the imposition of a constructive trust), nor Mims (holding that, despite the presumption that transfers among spouses are gratuitous, the plaintiff stated a claim for the imposition of a resulting trust where he "supplied the entire purchase price for the property from money he received from his father and grandfather," "at all times intended for the property to be his alone," so "advised the defendant at and before the closing," and "acquiesced in placing the title in both his and defendant's names only because he was advised by his real estate agent that North Carolina law so required"), appear to have any significant bearing on the proper resolution of this case in light of Plaintiffs' failure to articulate any way in which the facts at issue here are analogous to those at issue in Guy and Mims. As a result, we conclude that the trial court did not err by dismissing Plaintiffs' request for the imposition of a constructive or resulting trust on Tract II.

III. Conclusion

Thus, for the reasons discussed above, we conclude that the trial court did not err by granting Defendants' dismissal motion. As a result, the trial court's order should be, and hereby is, affirmed.

AFFIRMED.

Chief Judge MARTIN and Judge McCULLOUGH concur.