Young v. . Young

20 S.E. 471, 115 N.C. 105

• Court: Supreme Court of North Carolina
• Decided: September 5, 1894
• Status: Published

Opinion

MacRae, J.:

There is no dispute about the fact that the feme plaintiff was the residuary legatee and devisee of the estate of R. E. Young, deceased, and it is made to appear that all of the debts and legacies have been paid, or secured, to the parties entitled and the estate settled. Now these past-due rents, accrued after the death of the testator, had ceased to be rents, or in anywise incident to the land, and had become a debt due from Barnes, Stainback & Co., personally, to the owner of the said store. Jolly v. Bryan, 86 N. C., 457. The owner of the store was the residuary devisee, the feme plaintiff. By deed dated October 14,1891, but, by the testimony, not delivered until the 18th of said month, the feme plaintiff conveyed said land in fee to Mrs. Pattie Young, and the rent in arrear did not pass by said deed.

The only question raised by the exceptions is whether, by the final settlement and compromise of differences between the beneficiaries under the will of R. E. Young, it was agreed that these sums past due for rent of the said store should belong to Mrs. Pattie Young, and whether by the said settlement they were so assigned. This paper-writing alone, signed by Mrs. Pattie Young, through her agent the defendant, in which she agreed that^certain other rents were to be paid to the feme plaintiff, could not by force of the exception amount to an assignment to herself of money then due and owing to the feme plaintiff.

But there was evidence tending to show that the deed of compromise and settlement executed on September 30,1892, was supplemented by a further and independent agreement on the 18th of October, when the arrangement was concluded and the deed from the feme plaintiff and her husband was delivered to Mrs. Pattie Young. The testimony tends to prove that Mr. Hicks on the one side as attorney for the feme plaintiff, and the defendant on the other side as agent for Mrs. Pattie Young, were authorized to and did make the settlement. Whether in that final settlement there was an agreement that Mrs. Pattie Young was to have these past-due rents, which otherwise belonged to the feme plaintiff, was the principal question. His Honor submitted but one issue to the jury: “Is the defendant indebted to the plaintiff, if so in what sum?” And under this issue all matters in controversy could be easily presented.

The defendant contended that, by the agreement between the parties through their attorney and agent, these past-due rents were to be paid to Mrs. Pattie Young.

The testimony was conflicting as to whether the paper in question was signed before the final settlement was concluded, or soon afterwards. It was not in itself, as we have said, an assignmentof said past-due rents, even when accepted by the feme plaintiff, but in connection with all of the other testimony we think it was competent evidence to be submitted to the jury, if the jury were satisfied that said paper was a part of the settlement. His Honor placed the burden where it belonged, on the defendant, to show that the feme plaintiff had parted with or waived her right to the money in controversy. He explained the contention of the parties, and submitted the same with all the evidence to the jury; there were no prayers in writing for special instructions; and the exception to the admission of the paper-writing, and that to the testimony of the defendant as to his disposition of the rents collected by him, were both based upon the theory that there was no evidence proper to be submitted to the jury to satisfy them that the feme plaintiff had given up her right to the said past-due rents. There is no error.