Whitehead v. Whitehurst

• Decision Date: 28 April 1891
• Parties: Whitehead et al. v. Whitehurst.
• Court: North Carolina Supreme Court

13 S.E. 166

108 N.C. 458

Whitehead et al. v. Whitehurst.

Supreme Court of North Carolina

April 28, 1891

Appeal from superior court, Edgecombe county; Whitaker, Judge.

This action is brought by creditors of the intestate of the defendant to compel him to an account of his administration and to pay the creditors what may be payable to them respectively. The pleadings raised issues of fact and law. In the course of the action "the case" was by consent of parties referred to a referee, "to find the facts and state the accounts, and report the result of his findings," etc. Afterwards the referee made report as directed, and the defendant filed divers exceptions thereto. Afterwards the court overruled all these exceptions, and gave judgment for the plaintiff. The defendant, having excepted appealed to this court, assigning error as follows: "(1) That he has failed to credit the defendant with his account of five hundred and seventy dollars for rent of mill under the contract of milling, as established by the testimony of D. C. Moore and G. A. Vick. (2) That he has failed to credit the defendant with Exhibits R and S, as representing the indebtedness of B. C. Highsmith, defendant's intestate to G. A. Vick, arising under the milling contract aforesaid, and paid by M. D. Whitehurst, the defendant, amounting to six hundred and forty-eight dollars and sixty-eight cents. (3) That he has charged the defendant with twelve hundred and eleven dollars as of 1883, proceeds from sale of land; whereas the amount proper to have been charged was eight hundred dollars, 6th day of May, 1889. The defendant excepts to the referee's conclusions of law numbered, respectively, 1, 2, 5, 6, 11." The findings of law thus referred to are the following: "(1) That, while purchase by a mortgagee at his own sale is voidable, it is not void, but when the price is reasonable, and no exception taken by the mortgagor, it becomes valid; and therefore, by virtue of the sale made by William Whitehead, under his mortgage, on February 24, 1883. he became the legal owner of the lands purchased by him, and is not chargeable with rents. (2) That the defendant is chargeable with the proceeds of the first sale of the lands." "(5) That the debt mentioned in the twenty-first finding is not a proper charge. (6) That none of the items embraced in voucher 'T,' except that of Asa Bullock, are proper charges against the estate." "(11) That the plaintiffs are entitled to judgment that the sum of $1,261.57, remaining in the hands of the defendant administrator, and liable to the demands of the plaintiff creditors, be distributed among the several plaintiffs as follows: The plaintiff William Whitehead to recover the sum of $1,204.60; the plaintiff Piney Highsmith to recover the sum of $58.64; and the plaintiff M. G. Bryan the sum of $28.66."

Where a mortgagee purchases land at his own sale under license of the court, and afterwards there is a resale by consent of the parties, but without license of the court, for a less amount, the mortgagee is chargeable with the price bid at the first sale.

Battle & Mordecai, for appellees.

Merrimon C.J.

In effect the court approved and sustained the findings of fact and law by the referee. The reference was by consent of parties; hence it is not the...