Suit v. . Suit , 78 N.C. 272 ( 1878 )

1. The defendant's first exception, that the referee has not found the facts with sufficient distinctness and certainty, is itself so much at fault in that very particular that for that (275) reason, as well as for the further reason that it is not true in fact, we cannot sanction it.

2. And the same is true of the second exception.

3. The third exception to the report, because it finds that the plaintiff's claim is for the purchase money of the land in controversy, and therefore that the defendant is not entitled to a homestead therein, as against the purchase money, is not sustained.

4. The fourth exception, that the referee ought to have found generally against the plaintiff's claim and in favor of the defendant's, is not sustained.

An exception ought to discriminate and point out specifically the faults complained of, else it has no force. For instance, how can it possibly aid the court in finding out a fault, to say that the referee ought to have found for the defendant instead of the plaintiff? Or that he has not been sufficiently clear in stating the facts, or in stating the law, without pointing out how, and in what the faults consist, or to say that there are matters in the pleadings which are not reported upon, without pointing out such matters.

The plaintiff's claim is a $550 bond, which the referee finds to be due and unpaid, in whole or in part. The defendant sets up a counterclaim of $90, and names the items, one of which is for $10. The referee allows the $10 only as the counterclaim, and deducts it from the plaintiff's claim, and finds the balance. And then the defendant says, in his argument, although it is not in any exception, that the referee did not pass upon all of his counterclaim. We infer that he passed upon all and rejected all except the item allowed, $10.

At any rate, that is not in the exceptions. Again, the defendant complains that the plaintiff had given to the guardian of the defendant a bond for the benefit of the defendant, and that that bond had not been paid. The referee finds that such bond was given, and that it (276) was for $ _____ (leaving the amount blank), and that there remained a balance due on it, leaving the amount due blank. And then the defendant says that those blanks ought to have been filled up. And that would seem to be so, but for the fact that the referee finds that it was a part of the land trade between the plaintiff and the defendant that the defendant was to pay off that bond and relieve the plaintiff from it. It was therefore wholly immaterial what the amount of the bond was, or how much was the balance unpaid.

So far as we can see, the rights of the parties were fairly ascertained and declared, and that the exceptions were properly overruled and the report confirmed.

There is no error. Judgment would be rendered here for the plaintiff, but as there has to be a sale of the land, and as that can be better done below than here, the cause will be remanded, that there may be judgment below for the plaintiff, and such further proceedings as the law allows.

PER CURIAM. Affirmed.

Cited: Currie v. McNeill, 83 N.C. 181; Worthy v. Brower, 93 N.C. 347;Cooper v. Middleton, 94 N.C. 94; Battle v. Mayo, 102 N.C. 437;Manufacturing Co. v. Brooks, 106 N.C. 113; Tilley v. Bivens, 110 N.C. 344.

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