Suit v. Suit

• Citation: 78 N.C. 272
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 January 1878
• Parties: EDMUND F. SUIT v. ROBERT S. SUIT.

78 N.C. 272

EDMUND F. SUIT

v.ROBERT S. SUIT.

Supreme Court of North Carolina.

January Term, 1878.

CIVIL ACTION, tried at Fall Term, 1877, of GRANVILLE Superior Court, before McKoy, J.

This action was brought to recover the sum of $550 and interest alleged to be due by bond, and as the purchase money of a certain tract of land, of which it was alleged that the plaintiff was equitable owner in fee. The defendant denied that he bought the land of the plaintiff, but admitted that the legal title to the same as set forth in the complaint was vested in M. H. Suit, who conveyed it to the defendant, and alleged that the plaintiff was due him certain sums of money which were set up by items as a counter-claim. The plaintiff replied and said that the land was bought at a sale for him, while he was a minor, by said M. H. Suit; and that it was agreed that said Suit and plaintiff should pay for the same in equal proportions, and that said Suit should have the deed executed to himself; and that the land sold was devised by the will of Robert Sweeney to the plaintiff and defendant and others, and was sold by an order of Court upon their petition for partition.

The case was referred to a Referee, who reported: (1) That defendant had made no payment on the bond; (2) that defendant loaned plaintiff $10, which has not been paid; (3) that said bond was given as part consideration for plaintiff's interest in the Sweeney land, and that the deed from said Suit to defendant for one half of said land, was executed at the request of plaintiff, and in fulfilment of his agreement with defendant in respect thereto; (4) that the Clerk of the late County Court sold the said land under said proceedings for partition, and executed a deed for the same to said Suit, the purchaser, and that it was agreed that plaintiff should have a deed for one half of the same, when he arrived at majority, upon payment of half of the purchase money, and that after the sale, the premises were occupied by said Suit and the plaintiff, as their joint property; (5) that the purchase money was paid by said Suit as follows,--said Suit and plaintiff paid in equal proportions all that was due, except the shares of the defendant and his two sisters who were minors, but an arrangement was made for their benefit with J. R. Suit their guardian who accepted the joint bond of the plaintiff and M. H. Suit for $_____ being the amount due at that time, January, 1860, and upon which joint bond there is still an amount due, but how much, the Referee cannot state with any certainty; (6) that there was a contract between plaintiff and defendant, in which it was expressly agreed that defendant should, and did, assume the payment of such sum as the plaintiff was or might be liable for, on account of said bond; (7) that upon M. H. Suit's entering into the military service of the Confederate States in the year 1863, he drew up a paper writing setting forth a contract between plaintiff and himself, assigning to plaintiff that part of said land, which he afterwards at the request of the plaintiff conveyed to the defendant, and that this paper writing or deed came into the plaintiff's hands, but has been lost or destroyed; and (8) that defendant does not own any other land than that conveyed to him by M. H. Suit.

The Referee held that plaintiff was entitled to judgment for the amount of the bond, subject to the counter-claim of $10, and that defendant was not entitled to hold the land conveyed at the instance of the plaintiff as aforesaid, as a homestead exempt from execution, but that plaintiff was entitled to an execution against the same to satisfy this judgment.

The defendant excepted to the report, for that: 1. The facts from which the conclusions of law are drawn, are not found with sufficient distinctness and certainty to warrant them.

2. There are material issues raised by the pleadings and sustained by the evidence,...