(RUFFIN, J., dissenting.)
The plaintiff appealed.
The defendant having purchased at a sale under execution against B. F. Lockhart a tract of land in Northampton, known as the "Deans Plantation," and estimated to contain eight hundred and twenty-six acres, on December 16th, 1871, entered into an agreement
with Virginia P. Eaton, the mother of his wife, under their seals for the sale of the same to her at the price of twelve thousand nine hundred thirty-seven dollars and eighty-cents, whereof was then paid two hundred dollars in cash, two thousand seven hundred and thirty-seven dollars and eighty cents in a transferred judgment and execution against the same debtor, and the residue in four equal parts secured by her bonds falling due respectively on the first day of January of the next succeeding years and all bearing interest from April 1st of that year, and payable annually.
Upon the full payment of the purchase money, the defendant contracted to convey the estate in the land acquired under the sale and the deed of the sheriff thereafter to be executed. The agreement contains a provision in these words:
"Now although two of said bonds of $2,500 each fall due before the 1st of January, 1874, the said Bell will not undertake to enter on the premises to claim in any way forfeiture of said V. P. Eaton's claim, if all the said interest is promptly paid and no culpable waste committed until that date. But nothing is to be understood by this clause to prevent said Eaton's paying any part of the principal." The (445) covenant also recites that a sum of $1294.27, due under one of the executions, by virtue whereof the sale was made, and belonging to said Bell, is involved in a controversy in the court whence they issued, as to the disposition and apportionment of the money in the sheriff's hands, and whatever sum he may receive from that source "he is to allow Mrs. Eaton a credit on the said bond to that amount so received, and as a condition precedent to his making a title as aforesaid, the said Virginia agrees to pay to said Bell all expenses that he may be at in attending the said litigation and in making her title also."
The final cause is as follows: "It is expressly understood and agreed that all of the crops produced upon the said plantation, which may belong to Mrs. Eaton, shall be bound to pay the interest and principal of the debt of J. J. Bell, after the payment of taxes, and the same shall not be disposed of to any person or in any way, except with the consent of said J. J. Bell, until all of his debt is paid in full; it being the intent of this clause, under all circumstances, to give the said Bell a perfect lien on all the crops or parts of crops produced on said plantation to which Mrs. Eaton shall be in any way entitled."
The vendee died in February, 1876, having made several payments on her indebtedness from crops of cotton raised on the land during her lifetime, and the present plaintiff, her only heir at law, has administered on her estate. B. F. Lockhart died subsequently, the parties having
all resided as one family from the date of the contract until interrupted by her death.
The present action is for an account, the plaintiff alleging her belief that the purchase money has all been paid, and for the conveyance of the title to the land.
At Spring Term, 1878, the following order was entered in the cause: "It appearing to the court that this case involves the taking of an account between the defendant and the intestate of the plaintiff, it is now by consent referred to Thomas W. Mason to take (446) and report to the next term of the court an account between the plaintiff's intestate and the defendant. It is further agreed that the said reference shall be heard at Weldon on ten days notice."
The referee accordingly proceeded with great care and particularity to take the evidence, documentary and oral, noting such as was objected to and his own rulings upon its admissibility, putting down the obnoxious matter, so that if he erred his adverse rulings could be considered and acted on by the reviewing court. He has also with equal attention and perspicuity found the facts in a series of separate propositions with references to the testimony on which they are based, and stated his conclusions of law as deduced from the facts. We think a word of commendation is due to the referee for the fair, impartial and thorough manner in which his onerous and perplexing labors on the investigation have been performed and reported to the court.
In examining the report we see that he has met at every stage of the hearing, with exceptions to the introduction of evidence, those taken to the report by the plaintiff numbering near eighty, of which the court sustains sixty-two, overrules thirteen, and sustains in part, and overrules in part the others.
The case, accompanying the plaintiff's appeal and containing her assignment of errors, presents seven exceptions to the rulings of the court that we are asked to consider and correct. The exceptions are:
1. To the allowance, as a credit to the defendant of the sum of $136.10 paid by him for buildings or repairs upon the plantation, and to tenants for excess in the rent-cotton delivered above what was due, and the sum of $70.30 for bagging and ties used in baling.
2. To the admission of testimony in explanation of an endorsed credit of $450 on the bonds, interest to the end of the (447) year in which they were executed. This exception is not insisted on in this court and will not be considered.
3. To the receiving of the testimony of M. W. Ransom.
4. To the allowance of attorney's charges and other expenditures, in securing the share of the proceeds of sale under execution, amounting in the whole to the sum of $171.25.
5. To the finding, as a fact, the second contract between the parties for a renting, entered into on August 1st, 1875.
6. To the failure to charge the defendant with the three separate credits of $600 each, endorsed on the bonds, in payment of interest accrued to the beginning of the respective years, 1873, 1874, and 1875.
7. To the reception of the defendant's explanation of the drawing the bonds in form, bearing interest from April 1st preceding the date of their execution on December 16th of the same year.
To these exceptions, omitting the second, we now direct our attention in the order of their enumeration:
1. The equitable estate, the substantive property in the farm vested under the contract in the intestate, and the expenditure complained of, was for her benefit as owner and incurred without objection. In legal effect, it is an appropriation of a portion of the crop to the keeping up the farm, providing for its cultivation, and securing a full product. The excess in the delivered cotton for which the tenants were paid, was a proper deduction from the aggregate sales, enlarged by the addition of so much as belonged to them, for which the intestate's estate has credit. It is but a withdrawal of the excess from the cotton forwarded and sold, and giving it the residue. For the same reason the costs of the material used in baling were a proper deduction.
3. The testimony of M. W. Ransom to show the agency of (448) Lockhart in effecting the contract of purchase, and as bearing upon his general agency in obtaining and managing the farm for his principal, was both relevant and competent.
4. The contract contains a provision securing to the intestate the benefit of whatever sum the defendant might recover from the sales of the land, and further, that the intestate shall pay to him "all expenses, thathe may be at, in said litigation
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(RUFFIN, J., dissenting.)
The plaintiff appealed.
The defendant having purchased at a sale under execution against B. F. Lockhart a tract of land in Northampton, known as the "Deans Plantation," and estimated to contain eight hundred and twenty-six acres, on December 16th, 1871, entered into an agreement
with Virginia P. Eaton, the mother of his wife, under their seals for the sale of the same to her at the price of twelve thousand nine hundred thirty-seven dollars and eighty-cents, whereof was then paid two hundred dollars in cash, two thousand seven hundred and thirty-seven dollars and eighty cents in a transferred judgment and execution against the same debtor, and the residue in four equal parts secured by her bonds falling due respectively on the first day of January of the next succeeding years and all bearing interest from April 1st of that year, and payable annually.
Upon the full payment of the purchase money, the defendant contracted to convey the estate in the land acquired under the sale and the deed of the sheriff thereafter to be executed. The agreement contains a provision in these words:
"Now although two of said bonds of $2,500 each fall due before the 1st of January, 1874, the said Bell will not undertake to enter on the premises to claim in any way forfeiture of said V. P. Eaton's claim, if all the said interest is promptly paid and no culpable waste committed until that date. But nothing is to be understood by this clause to prevent said Eaton's paying any part of the principal." The (445) covenant also recites that a sum of $1294.27, due under one of the executions, by virtue whereof the sale was made, and belonging to said Bell, is involved in a controversy in the court whence they issued, as to the disposition and apportionment of the money in the sheriff's hands, and whatever sum he may receive from that source "he is to allow Mrs. Eaton a credit on the said bond to that amount so received, and as a condition precedent to his making a title as aforesaid, the said Virginia agrees to pay to said Bell all expenses that he may be at in attending the said litigation and in making her title also."
The final cause is as follows: "It is expressly understood and agreed that all of the crops produced upon the said plantation, which may belong to Mrs. Eaton, shall be bound to pay the interest and principal of the debt of J. J. Bell, after the payment of taxes, and the same shall not be disposed of to any person or in any way, except with the consent of said J. J. Bell, until all of his debt is paid in full; it being the intent of this clause, under all circumstances, to give the said Bell a perfect lien on all the crops or parts of crops produced on said plantation to which Mrs. Eaton shall be in any way entitled."
The vendee died in February, 1876, having made several payments on her indebtedness from crops of cotton raised on the land during her lifetime, and the present plaintiff, her only heir at law, has administered on her estate. B. F. Lockhart died subsequently, the parties having
all resided as one family from the date of the contract until interrupted by her death.
The present action is for an account, the plaintiff alleging her belief that the purchase money has all been paid, and for the conveyance of the title to the land.
At Spring Term, 1878, the following order was entered in the cause: "It appearing to the court that this case involves the taking of an account between the defendant and the intestate of the plaintiff, it is now by consent referred to Thomas W. Mason to take (446) and report to the next term of the court an account between the plaintiff's intestate and the defendant. It is further agreed that the said reference shall be heard at Weldon on ten days notice."
The referee accordingly proceeded with great care and particularity to take the evidence, documentary and oral, noting such as was objected to and his own rulings upon its admissibility, putting down the obnoxious matter, so that if he erred his adverse rulings could be considered and acted on by the reviewing court. He has also with equal attention and perspicuity found the facts in a series of separate propositions with references to the testimony on which they are based, and stated his conclusions of law as deduced from the facts. We think a word of commendation is due to the referee for the fair, impartial and thorough manner in which his onerous and perplexing labors on the investigation have been performed and reported to the court.
In examining the report we see that he has met at every stage of the hearing, with exceptions to the introduction of evidence, those taken to the report by the plaintiff numbering near eighty, of which the court sustains sixty-two, overrules thirteen, and sustains in part, and overrules in part the others.
The case, accompanying the plaintiff's appeal and containing her assignment of errors, presents seven exceptions to the rulings of the court that we are asked to consider and correct. The exceptions are:
1. To the allowance, as a credit to the defendant of the sum of $136.10 paid by him for buildings or repairs upon the plantation, and to tenants for excess in the rent-cotton delivered above what was due, and the sum of $70.30 for bagging and ties used in baling.
2. To the admission of testimony in explanation of an endorsed credit of $450 on the bonds, interest to the end of the (447) year in which they were executed. This exception is not insisted on in this court and will not be considered.
3. To the receiving of the testimony of M. W. Ransom.
4. To the allowance of attorney's charges and other expenditures, in securing the share of the proceeds of sale under execution, amounting in the whole to the sum of $171.25.
5. To the finding, as a fact, the second contract between the parties for a renting, entered into on August 1st, 1875.
6. To the failure to charge the defendant with the three separate credits of $600 each, endorsed on the bonds, in payment of interest accrued to the beginning of the respective years, 1873, 1874, and 1875.
7. To the reception of the defendant's explanation of the drawing the bonds in form, bearing interest from April 1st preceding the date of their execution on December 16th of the same year.
To these exceptions, omitting the second, we now direct our attention in the order of their enumeration:
1. The equitable estate, the substantive property in the farm vested under the contract in the intestate, and the expenditure complained of, was for her benefit as owner and incurred without objection. In legal effect, it is an appropriation of a portion of the crop to the keeping up the farm, providing for its cultivation, and securing a full product. The excess in the delivered cotton for which the tenants were paid, was a proper deduction from the aggregate sales, enlarged by the addition of so much as belonged to them, for which the intestate's estate has credit. It is but a withdrawal of the excess from the cotton forwarded and sold, and giving it the residue. For the same reason the costs of the material used in baling were a proper deduction.
3. The testimony of M. W. Ransom to show the agency of (448) Lockhart in effecting the contract of purchase, and as bearing upon his general agency in obtaining and managing the farm for his principal, was both relevant and competent.
4. The contract contains a provision securing to the intestate the benefit of whatever sum the defendant might recover from the sales of the land, and further, that the intestate shall pay to him "all expenses, thathe may be at, in said litigation and in making her title also." The sums charged were expended in securing the money, with the whole of which she is credited by the referee. It is an obvious proper diminution to be made.
5. The rent agreement of August 1st, 1875, the fruit of the efforts of Lockhart and accomplished through his instrumentality, of which his letters furnish plenary proof, accepted and ratified in its execution by the principal and to which the agent becomes an attesting witness also, containing an express mention of the agency, was material in like manner as the original contract in buying, to show the continuing relations subsisting between them as principal and agent.
6. The defendant ought not to be charged with the endorsed payments of annual interest amounting to $1,800, as upon his testimony, it was his own appropriation of that sum out of the receipts from cotton, and in the report of the referee he is charged with the whole fund received from that source, and he would be made responsible for the same money twice. It is needless to elaborate the question of the competency of the defendant to give his testimony upon the matter, as it is discussed in the opinion in the defendant's appeal. We will only add that his testimony is partially sustained by that of the witness, Gooch.
7. The subject of the last exception is disposed of in the preceding.
Upon a careful review of the whole matter, we find no ground for a correction of the rulings presented for review in this (449) appeal of the plaintiff, and affirm them. This will be certified that the cause may proceed in the court below.
No error. Affirmed.
In same case upon defendant's appeal: