Faircloth v. Borden
| Decision Date | 06 May 1902 |
| Citation | 41 S.E. 381,130 N.C. 263 |
| Parties | FAIRCLOTH v. BORDEN. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Wayne county; Robinson, Judge.
Action by E. E. Faircloth against E. B. Borden, as executor of W. T Faircloth, deceased. From a judgment for plaintiff on exceptions to the report of the referee, defendant appeals. Reversed.
F. A Daniels and Allen & Dortch, for appellant.
W. C Munroe, for appellee.
The plaintiff is a daughter of the late Council Wooten, of Lenoir county and was married to the defendant's testator, William T. Faircloth, on the 10th day of January, 1867. Her father died intestate on the 22d of August, 1872, from whom the plaintiff inherited valuable real estate in Onslow county as tenant in common with her sister, Mary L. Wooten. Soon after the death of plaintiff's father, defendant's intestate took charge of said property, rented or leased the same, collected the rents, and paid over and accounted to the said Mary L. for one-half thereof. He finally effected a sale of said property upon time, taking note and mortgage on said land as security for the purchase money. The deeds to purchasers were executed by defendant's testator and wife, the plaintiff, E. E. Faircloth, and the said Mary L., and the mortgage to secure the same was executed to the plaintiff and her sister, the said Mary L. From time to time, defendant's testator collected and received the interest due on the note given for said lands, and finally received all the purchase money remaining due thereon, principal and interest, and accounted for and paid over to the said Mary L. one-half thereof, but never accounted for or paid any part of the rents, interest, or principal to the plaintiff. In these transactions, in making leases and in receiving rents, interest, and principal money, defendant's intestate signed his own name, adding the word "Agent." In his last will and testament he devised to the plaintiff certain real estate, in which is said, "This devise is in lieu of all moneys I received from her property in Onslow county, North Carolina." The plaintiff in due time dissented from said will, and brought this action, in which she claims one-half of all the money the intestate received from the Onslow property, whether it was received as principal, interest, or rents. The defendant answers, and denies her right to recover the same,--especially that part his intestate received as rents and interest,--and specially pleaded and relied on section 1837 of the Code as a bar to her right of action thereon.
The case was, by consent, referred to Geo. Rountree, Esq., to take and state an account of the matters involved in the controversy, which he did, and reported that defendant's testator had received as rents $8,568.24; as principal on purchase of said land, $20,568.15; as interest on purchase money, $7,833.16; making, in the aggregate, $36,969.55, of which sum the plaintiff and Mary L. Oliver (née Wooten) were each entitled to one-half, but the defendant's testator had received said money without objection from plaintiff. From the facts so found, he concluded, as matters of law that the plaintiff was not entitled to recover any part of the $8,568.24 received as rents, nor any part of the $7,833.16 received as interest, but was entitled to recover half of $20,568.15, received as principal money; this representing the corpus of the estate inherited by the plaintiff from her father. But plaintiff, not being satisfied with the referee's findings of fact, nor his conclusions of law, excepted to both, and upon a hearing upon report and exceptions before Robinson, J., he found, instead of the sixth finding of the referee, as follows: ...
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