Benzein v. . Robinett , 17 N.C. 67 ( 1831 )

The clerk at this term reported that the defendants, on account of rent and waste, owed to the plaintiffs Stokes and Welborn $1,208 principal and $863.50 interest. In coming to this result the clerk charged the defendants interest upon the value of the land from the end of every year in which the profits were received by them up to the time of filing his report. The clerk also reported the fact that the defendants had filed with him sundry notes of the plaintiff Stokes which they claimed to have set off against any balance that might be due him. Copies of these notes were certified with the report, and from them it appeared that none of them were payable to or endorsed to the defendants, but the legal title to most of them were in a copartnership, of which one of the defendants only was a member.

The plaintiffs excepted to the report because the clerk had allowed a smaller sum per annum, for rent, profits, and waste, than was justified by the testimony before him.

A statement of the facts proved before the clerk, and on which this exception was founded, is unnecessary.

The defendants excepted, (1) to the mode adopted by the clerk in estimating the interest upon the rents and profits, insisting that no interest should have been charged before the filing of the bill; (2) because the clerk had not allowed them credit for the above mentioned notes of the plaintiff Stokes. The exceptions of the plaintiffs are both overruled, because the allowances both for rent and damages are more than ample. The clerk gives full rent, as if the landlord had kept up repairs, (69) and at the same time charges the defendants with them. Had the other side excepted for this, the amount might have been reduced, but there is no reason to increase it.

Though rents do not usually bear interest until the filing of the bill, or an account be demanded, yet where the possession was, as here, mala fide from the beginning, the profits became a debt from their perception, and of course bear interest. The first exception of the defendants is, therefore, overruled.

The bonds mentioned in the second exception can, on no principle, form set-offs. They do not appear to belong to the defendants, except from the possession. They are not mutual debts at law or in equity, except by bringing in other facts and persons not before the court, and not stated in the answer. If, indeed, the obligor be insolvent, that would be a ground in this Court why they should be deemed a satisfaction of so much of the sum as may be decreed to that party; and to enable the defendants to avail themselves of that, a petition might be filed in the cause, had the bonds been assigned to the defendant. But as other persons, namely, the obligees in the bonds, would be necessary parties, a petition will not serve; and the defendants must be put to their bill, as in Iredell v. Langston,16 N.C. 392. This exception must also be overruled.

PER CURIAM. Decree accordingly.

Cited: March v. Thomas, 63 N.C. 88.