158 N.C. 98 | N.C. | 1911
Tbis case has been before us for adjudication of one question or another several times, and is reported in 151 N. C., 620; 152 N. C., 314; 155 N. C., 242, and 155 N. C., 247. The defendant C. H. Miller, who was the commissioner appointed by the court to sell certain realty, has brought the case here by appeal from the final judgment, he having excepted to rulings of the court during the several stages of the proceedings in the court below, which was the proper method of procedure, as we held in Smith v. Miller, 152 N. C., 314, and 155 N. C., 242. He relies upon the following exceptions taken to the rulings of Judge Peebles:
1. Miller, as commissioner, was allowed certain items in his account, and to this ruling of the judge there was no exception, so that they must stand. Rut he was denied credit for other items, and to this ruling he has excepted. Among them is a claim he now makes for taxes and local assessments levied upon the property which he sold under orders of the court. It appears that at December Term, 1904, Judge Shaw made an order directing or authorizing Miller, as commissioner, “to pay all such
We do not see why Judge Shaw could not make sucb an order. It was within tbe power and jurisdiction of tbe court to sell tbe land for partition, and in order to give a clear title it was certainly necessary that tbe taxes, wbicb constitute liens upon tbe land, should be paid. What would be tbe use of dividing tbe 'lands if they could be sold for taxes and tbe estate of tbe parties therein be forfeited or lost? Tbis proceeding would, in such a ease, be a vain and useless one. Tbe commissioner may not have been under any obligation to pay tbe taxes and assessment without an order, but it seems to us, at least, that tbe order was not only a proper and legal one, but absolutely necessary for tbe protection of tbe interests of tbe parties. It was clearly 'to their advantage, and having profited by it, they will not now be beard 'to' complain. He who is willing to reap tbe benefit 'sbould.be made to take it with tbe burden wbicb naturally and equitably goes witb.it. We think tbe court bad tbe jurisdiction and tbe order was a just and lawful exercise of bis power. Our opinion also is that tbe order of Judge Shaw embraces, and was
2. "We also think that Miller, as' commissioner, should be allowed commissions at least to the amount that they were ordered to be retained by him, which appears to be $1,400. There was no exception to this order at the time, and Judge Slum is presumed to have made it upon full consideration of all the facts and circumstances, and while we do not decide that the order was not reviewable by Judge Peebles, as it is not necessary to do so, we do not see why it should not stand as it was made. The learned judge, in overruling it, may have been influenced, at least to some extent, by the erroneous view taken of some of the questions we are now considering. This exception to the ruling disallowing commissions of $1,400 is sustained.
3. Miller, commissioner, disbursed a large sum in the manufacture of concrete blocks for use in the construction of the new hotel building in Asheville. Judge Peebles refused to allow’ him any credit for this expenditure, and ordered his successor,. Mr. Whitson, to sell the blocks and apply the net proceeds as a credit on the judgment against Miller in this ease, after finding as a fact that the blocks were manufactured by Miller “in his
None of tbe exceptions we have considered are covered by our first ruling in tbe case, that tbe court did not have jurisdiction to authorize, tbe building of tbe hotel. They relate entirely to other matters clearly within tbe cognizance of the' court. The other exceptions of defendant are overruled.
It may be that some of tbe amounts are not correctly stated, and if they are not, tbe court below may refer tbe matter for a finding as to tbe true amounts, unless tbe parties can agree as to them.
Tbe judgment of tbe Superior Court will be modified in accordance with this opinion.
Error.