Vaughan v. . Lewellyn
94 N.C. 472
N.C.
1886
Check Treatment
Smith, C. J.

(after stating the facts). The form of the substituted order is intended to be similar to the first, and we think makes a reference by consent, under The Code. Atkinson v. Whitehead, 77 N. C., 418; Overby v. The B. & L. Asso., 81 N. C., 56; Grant v. Reese, 82 N. C., 72, аnd such it seems to have been deemed ‍​‌‌‌‌‌‌​‌‌‌‌‌‌‌​​​​​​​​‌​‌‌‌​‌​‌‌‌‌‌​‌‌​‌‌​​​​‌‌‍and acted on by counsel.

The Court, when revising the report of a rеferee, who acts under a consent order of reference, upon issues both of fact and law raisеd by exceptions, exercises to this extent, the jurisdictional functions appertaining to the jury, as well as thosе appertaining to the Judge. In this dual capacity, he passes upon the competency of evidеnce that he hears or refuses to hear, as he does upon its effect as proof, direct or inferеntial, of a disputed fact. His rulings upon the law are reviewable, while his findings of fact are not, in the appellate Court. The Code, §§422 and 423. In like manner, he exercises the two-fold jurisdiction when a trial by jury is waived, and the determinatiоn of the entire cause is submitted to him. Const., Art. 4, §13.

We propose to consider, in deciding the appeal, the еrror assigned in the first exception to the final ruling, which is alleged to have contributed largely in coming to the cоnclusion that full .payment had been made. It is presented to ‍​‌‌‌‌‌‌​‌‌‌‌‌‌‌​​​​​​​​‌​‌‌‌​‌​‌‌‌‌‌​‌‌​‌‌​​​​‌‌‍us in the aspect of an instruction to the jury in an ordinаry trial, and if it would have involved a reviewable error in such case, so it is when the erroneous rule is seen to hаve guided his own action in determining a question of fact.

*479 In the expressive words of the late Chief' Justice, “ He, as Judge, is to admit or reject evideuce, aud is to сharge himself upon the questions of law applicable to the case; and is then, as jury, to find the facts and render a special verdict. The same is the mode of procedure before a referee.” Perry v. Tupper, 74 N. C., 722.

In еxercising a revisory power over a referee upon exceptions, which limit its range, the same general principle governs the Judge in passing upon the facts and law of each, and ‍​‌‌‌‌‌‌​‌‌‌‌‌‌‌​​​​​​​​‌​‌‌‌​‌​‌‌‌‌‌​‌‌​‌‌​​​​‌‌‍while reviewing the report, he may “ set aside, modify, of confirm the same, in whole or in part,” an appellate jurisdiction attaches to his rulings in matters of law only.

Confidential relations, in our opinion, are not formed between parties to an agreement for the sale and purchase of land, simply because the payment is deferred and the title retained asa security for the purchase money. Nor are any business transactions occurring between them afterwards, shown, out of which such confidential relations can arise. The burden of showing the discharge of the obligation to pay, in this, as in other cases, rests upon him who is'to make the payment, aud it is not removed or diminished by any facts proved. “ Slight proofs of payments,” do not “raise presumption of payment,” but the evidence must bе sufficient and satisfactory to establish the fact that payment has been made, without the aid of the artificial presumption to which the Court resorts to aid and help out defective proof.

The rule growing out of cоnfidential ‍​‌‌‌‌‌‌​‌‌‌‌‌‌‌​​​​​​​​‌​‌‌‌​‌​‌‌‌‌‌​‌‌​‌‌​​​​‌‌‍relations, when they ex ist — McLeod v. Bullard, 84 N. C., 515, on the rejiearing — applies to any advantage or interest acquired by thе superior, over the inferior or dependant party, from the act of the latter, and assumes that it has beеn obtained by undue influence, which must be met by evidence that the transaction was fair, and the concession voluntary. How is the rule invoked- here, in aid of the defendant? What act has been done, which the plaintiff seeks to tаke benefit under, and,which is deemed to be involuntary and unfair in favor of the defendant? There is none to which *480 the presumption is appropriate, if such relations as supposed, did subsist between' the parties. It is called intо requisition here, not to put out of the way some obstacle ai-ising out of the defendant’s act, not to defеat ‍​‌‌‌‌‌‌​‌‌‌‌‌‌‌​​​​​​​​‌​‌‌‌​‌​‌‌‌‌‌​‌‌​‌‌​​​​‌‌‍some right or claim acquired from him, but to dispense with needed proof, which the plaintiff is unable to furnish, of an аffirmative fact. There is no presumption to be repelled, but absent proof to be supplied.

The ruling in McLeod v. Bullard, supra, at eithеr hearing, is not a precedent for the present ruling. In that case, with the relation of mortgagor and mortagеe, there were others clustering around it, which without stopping to enumerate, will be found in the last report in the opinion, showing the fiduciary relations, and warranting the production of some evidence, beyond that of the dеed exhibited, that there was no fraud practiced in procuring its execution.

It is true, there are some things in cоmmon in the relation of mortgagee and mortagor, and vendor and vendee of real estate. There is an indebtedness from the one to the other, and the estate is held by the latter, as a security for its payment. But therе are also essential differences. The equity of redemption in the mortgage, may be sold under executiоn. The reserved estate of the vendor, while any of the purchase money remains due, prevents the sale of the equitable estate of the vendee under such process. But without enumerating other differences, it is difficult to see, how the mere fact that one owes for purchased land, and is to have a deed for it when it is paid for, can produce such a condition of dependence, as will authorize a presumption that payment has been made, in the absence of the proof required in other cases of creditor аnd debtor.

As there is error in giving more force and effect to evidence than it intrinsically possessed, by introducing thе artificial rule of presumption in its support, a new trial must be awarded, and in order thereto, let this be certified, that the Court may again hear and pass upon the exceptions to the report.

Error, Reversed.