Barfield v. Barfield , 113 N.C. 230 ( 1893 )

Burwelu, J.:

The contention of the defendants, that Nancy Barfield acquired a title in fee to the land in dispute by virtue of a purchase of it by her at a sale made in 1853 by the Sheriff of Wayne County, has nothing to support it. They themselves showed that if it was sold at all (of which, in fact, there was no legal evidence), the sale was made under a writ of venditioni exponas issued several years after the death of John Barfield, and they made no proof whatever of the issuing or serving of any scire facias against his heirs. The writ was null and void. Samuel v. Zachary, 26 N. C., 377. And every act done under it goes for nothing.

This disposes of the defendants’ alleged title, and brings us to the consideration of the rights of the parties under the will of John Barfield.

By that will the title to the land, upon the death of the widow, was vested plainly in the plaintiff and his heirs. The title did not, in any event, descend to all the heirs of John Barfield, nor did it, in any contingency, vest in the femes defendant, his daughters. The latter had, under that instrument, neither title nor right of possession. The land was simply charged with the payment of the sum of $350 to each of them. It was their privilege, according to the provision of the will, to prevent their brother from occupying the land and appropriating the rents to his own use till these sums were paid to them, and to that end they might have invoked the aid and protection of a Court by proper proceedings to have the rent collected and reserved and the land sold, so that out of the fund so arising they might certainly have what the testator said they should have. Instead of pursuing this course, they chose to assert a title adverse to the plaintiff devisee, to rent out the land and appropriate the income to their own use; and when their pretended title fails, they insist that the rents accruing from the death of the life-tenant to the date of plaintiff’s offer to pay the sums charged on the land for them, belonged to them, and that they are not accountable therefor to the plaintiff. His Honor properly decided that they should account for all the rents received by them. As we have said, they had no right to the possession, either as heirs at law or devisees. Had the testator put the title in them with a provision that it should vest in the plaintiff when he paid to each of them the sums named, the rents might have been theirs till the payment was made or there was a proper tender of payment. But this provision the (es-tator did not see fit to make. He willed that they should have a certain sum of money. This they will have received when the judgment is fully executed, with interest thereon from the day it was first incumbent on the plaintiff (o pay it. It is difficult to see how they can, with any show of reason, claim more than this under their father’s will.

The judgment, we think, in a very proper manner, provides for an adjustment and settlement of the conflicting claims of the parties.

The evidence in relation to the payment of money to the executrix of John Barfield’s will was immaterial. Its admission, if erroneou=, was harmless.

Affirmed.