Carr v. . Alexander , 112 N.C. 783 ( 1893 )

The plaintiff, when the case was called for trial, could enter a nonsuit as to the defendant executor, and no one had a right to object to this except that particular defendant, and he only in the (789) event that in his answer he had demanded affirmative relief against the plaintiffs or some of them, which he had not done. If, when the executor had been thus discharged by the plaintiff, the other defendants had so demanded, the court might have adjudged him to be a necessary party, and might have directed him to be made a party again at their instance. No such motion was made, nor did his Honor, of his own motion, cause him to be brought in (The Code, sec. 189), concluding correctly, as we think, that his presence was not necessary to a complete determination of the controversy.

It appears that the defendants tendered certain issues, but they made no exception to the refusal to submit those they tendered nor any exception to those submitted by his Honor till they asked for a new trial. These exceptions came too late to be considered. However, we do not think they would have availed the defendant if they had been taken in apt time, because the issues settled by his Honor, and submitted to the jury, were sufficient and proper. Emery v. R. R., 102 N.C. 209; Leach v. Linde,108 N.C. 547.

The record of the suit of S. M. Carr against Richmond Pearson, executor, was properly excluded. It did not show the pendency in the Superior Court of Buncombe of another action between the same parties and for the same cause of action. Not one of the defendants here was a party to that suit.

When, in 1879, Richmond Pearson, executor, under power given him in the will of his testator, contracted to sell the land in controversy to J. E. Alexander, W. M. Smith and James M. Wright, the legal title thereto was in the heirs of R. M. Pearson in trust to convey it to S. M. Carr in fee whenever the balance of the purchase-money due from him to the estate of R. M. Pearson was paid. In 1884 it was judicially determined that the balance of the said purchase-money was (790) three hundred and forty dollars, which was adjudged to bear interest from 25 July of that year. It is admitted that all the other heirs of R. M. Pearson conveyed their estate in said land to Richmond Pearson, and the latter has conveyed the same to Alexander, Smith and Wright, who, having gone into possession under the executor, to whom the balance of the purchase-money was due, and also holding under a deed from him who was invested with the legal title as trustee for Carr, the vendee, stand in the place of both the executor and heir of R. M. Pearson so far as Carr and his assignee are concerned, and whatever rents and profits would have been credited on the purchase-money, if the land had remained in the hands of the executor, are properly to be credited on that debt, though the land has been held and used, not by the executor, but by his vendees and tenants.White v. Jones, 88 N.C. 166. It so happened that the trustee held the legal title and the possession, and was himself, as executor the cestui quetrust. It was his duty to apply the rents and profits of the land to the extinguishment of the debt, until said debt was thereby fully paid, if he chose, as it seems he did, not to have the commissioner to sell the land. And, since he saw fit to hold possession by his assignees, who had notice of Carr's equities, he and they are liable to the plaintiff for such waste and damage to the land as has been committed or done while it was so held. The plaintiffs, the debt due for the purchase of the land being extinguished, are entitled to the possession of it, and to such balance of rents and damages as remain after appropriating as much thereof as may be necessary to the satisfying of that claim.

And the executor's presence in court as a party to this action was not at all necessary in order that there might be made a settlement that will effectually bar, as it seems, any lien he may assert on the land for the balance found due him by the decree of 1884. By force (791) of the judgment in this cause the legal title to the land is vested in the plaintiffs, and they hold that title free from any trust in favor of the executor, if in fact he sold the land to the defendants, for the sale of the land by him was a transfer of his debt or claim thereon, and that has been adjudged to have been satisfied by a judgment binding on his assignee.

As the executor was not a party when the decree was rendered, it was not strictly proper that it should declare that a judgment standing in his favor should be canceled. If, in truth, he sold the land to the defendants, that legal effect will follow. If he had not done so, the decree will be harmless as to him, as it has no binding force on the executor except through his assignee. So in neither case can it work harm to him.

NO ERROR. AFFIRMED.