48 S.E. 811 | N.C. | 1904
This action was brought to recover possession of a tract of land. Defendant set up in defense a parol trust, as follows: That the plaintiff bought the lands at a public sale made by the trustee under a power contained in a deed of trust executed by the defendant to S. J. Brawley to secure a debt due him, and that prior to the sale he promised and agreed to hold it in trust for the defendant until he could pay the amount of the purchase-money advanced by the plaintiff, which was $3,995. That defendant remained in possession of the land after the sale, upon an agreement to pay the plaintiff out of the rents and profits a sufficient amount each year to keep down the interest, with which agreement he complied. That defendant offered to settle with the plaintiff upon the basis of (562) $3,995 and interest thereon if plaintiff would account for the rents and profits received by him, but he declined the offer and insisted upon receiving $6,000 as the price of the land, and would agree to settle only on that basis. Defendant, in his answer (section 6), avers his willingness to settle with the plaintiff and to pay him any amount found due according to their contract or agreement. Although no reply was filed by the plaintiff to the answer, he seems to have denied the trust, as an issue was submitted to the jury, based upon the averment in the answer of a trust, which was found in favor of defendant. Upon this finding of the jury the Court, at November Term, 1902 (Judge Neal presiding), adjudged that the plaintiff was not the owner of the land, but that he held the legal title in trust for the defendant, and directed a conveyance of the title to be made by the plaintiff to the defendant upon the payment by the latter of the sum found due to the former, which sum, until it should be paid, was declared a lien upon the land. A reference was then ordered to state an account. The referees reported to November Term, *409
1903, finding that the defendant owed plaintiff $3,327.61, and exceptions were filed to the report by both parties. At February Term, 1904 (JudgeO. H. Allen presiding), counsel for the respective parties agreed in writing as to the rulings upon the exceptions which increased the amount which was found by the referees to be due to $3,558.61, and it was then further agreed by them that judgment should be entered therefor. The Court thereupon adjudged that the plaintiff convey the land to the defendant upon the payment of the debt thus ascertained, and that "all the costs incurred before the referees, including witnesses both for the plaintiff and defendant, be taxed by the Clerk of the Court against the defendant." There were other costs taxed against the defendant, but he took no exception thereto. Costs accrued to the time of making the order of reference were taxed against the plaintiff. The Court provided for a (563) sale of the land if defendant failed to pay the debt and costs taxed against him by the day named in the judgment. Defendant excepted to that part of the judgment taxing against him the costs of the reference as above set forth, and appealed.
Upon the foregoing statement of facts taken from the record, we think his Honor erred in taxing the defendant with any part of the costs covered by his exception. The taxation and payment of costs are now regulated by statute (Clerk v. Comrs.,
In Vestal v. Sloan,
But the plaintiff's counsel contend that, as the defendant denied that anything was due, he thereby made an accounting necessary and should therefore be taxed with the costs of the reference. The record tends to show that the plaintiff himself did not know what was due, or, if he did, he did not disclose it or claim any particular sum. For this reason a reference was necessary. But it seems to us the cases above (567) cited furnish an answer to the contention, and further that Bruner v. Threadgill,
There is error in the ruling of the Court, and the defendant's exception is sustained.
Error.
Cited: Williams v. Hughes,
(568)