Morrison v. McLeod

• Decision Date: 31 December 1841
• Citation: 37 N.C. 108,2 Ired.Eq. 108
• Court: North Carolina Supreme Court
• Parties: JOHN MORRISON et al. Admor's of BENJAMIN PERSON v. NIEL M'LEOD.NIEL M'LEOD v. JOHN MORRISON et al. Admor's of BENJAMIN PERSON.

2 Ired.Eq. 108

37 N.C. 108

JOHN MORRISON et al. Admor's of BENJAMIN PERSON

v.NIEL M'LEOD.NIEL M'LEOD

v.JOHN MORRISON et al. Admor's of BENJAMIN PERSON.

Supreme Court of North Carolina.

December Term, 1841.

When, in an enquiry before a master on a matter of account, several witnesses are examined and give different estimates as to value or price, and he can make no discrimination among them, either as to their integrity, intelligence or opportunities of knowledge or judgment; he may safely assume as his guide an average of their different estimates. But not in a case where such discrimination can be made. He must then be governed by the weight of the evidence.

When a mortgagee takes actual possession of the mortgaged premises, he makes himself tenant of the land, and subjects himself to the highest fair rent and becomes responsible for all such acts or omissions, as would, under the usual leases, constitute claims on an ordinary tenant.

But if he commit an act of waste, such as clearing lands &c., by which the value of the rent is temporarily increased, the mortgagor, in calling upon him to account, cannot make him responsible both for the acts of waste and for the enhanced rent arising from such acts.

Upon the hearing of these causes heretofore--reported, 2 Dev. & Bat. Eq. 221--the conveyance to Person was declared to be but a security for the sum justly due from M'Leod; and there was a reference to the master to take an account of the moneys advanced by Person, for the securing of which the conveyance was made, and of all debts contracted with him by M'Leod; and of the rents and profits received, and waste committed by Person, or those claiming under him, with the usual directions to compel the production of books, and examine the parties on interrogatories. Under that order an account was taken and a report made to this term, and exceptions are taken thereto on each side.

Most of the exceptions are founded upon matters of detail in the account, involving no principle of law or rule of practice, and they are therefore omitted.

Winston, Badger and Strange for Morrison .

W. H. Haywood jr. and Mendenhall for M'Leod .

RUFFIN, C. J.

The remaining exceptions of Morrison, and others administrators of Person, and the 5th and 7th, on the part of M'Leod, relate to so much of the account, as respects the rents and profits of the land received by Person and his representatives, and the improvements and waste of the premises; and they may be considered together. Person entered into possession in May or June, 1827, and the lands have been occupied by him and his representatives ever since. For the part of the year 1827, and for the year 1828, the master has fixed the rent at the rate of $56, and for every succeeding year to 1841, inclusive, at $166 per annum. The waste is estimated at $337, and the improvements at $177; and deducting the latter from the former sum, the master credits M'Leod, on the 1st day of January, 1842, with the difference, to wit, $160. A number of witnesses were examined on each side, who made estimates of the crops made on the land, and their value, and gave their opinions as to reasonable rents before and after the improvements, and of the value of the improvements, and amount of waste; and the master arrived at his conclusions on these points chiefly by making an average of the estimates of the witnesses. M'Leod excepts because sufficient rents have not been allowed him. The other side excepts, because the principle on which the master proceeded is wrong, and he ought to have been governed by the testimony that was most satisfactory to his own understanding; and also to the allowance for waste, and to the amount of the rents, which, it is insisted should be according to the value at the time Person entered into possession, or, at all events, according to what was made from the land.

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