Field v. . Wheeler , 120 N.C. 264 ( 1897 )

The Court, having found as a fact that one-fourth of the crop, less one-fourth of the costs of fertilizers used, was a fair rental value, rightly adjudged that the plaintiff only recover said rental and no more; for the will, as construed in Hunt v. Wheeler, 116 N.C. 422, conferred a right to collect and apply "the rents and profits of the land" upon the lien, but his Honor erred in taxing the plaintiff with any part of the expense of gathering and marketing the crops, for that devolved upon the parties paying, or responsible for rent — the defendants. It was also error to tax the plaintiff with any part of the costs of the action, except one-half the fees of the arbitrator, or referee by consent — as he really was. The Code, sec. 533, as amended by Laws, 1889, chap. 37, making the apportionment of referee's fees discretionary in the Court. As to the rest of the costs, it is true the plaintiff, having taken (270) the whole crop under claim and delivery, was adjudged to pay back part of its value to the defendants, but the conduct of the latter, by their admissions in the answer, made the proceedings necessary. The plaintiff, having obtained judgment for part of the crop taken by him in claim and delivery, is entitled to judgment for the costs. The Code, 525 (2); Horton v. Horne, 99 N.C. 219; Wooten v. Walters, 110 N.C. 251;Ferrabow v. Green, ib., 414.

J. H. Gooch moves in this court to be substituted as party plaintiff (The Code, sec. 965) upon a certificate of the clerk showing an assignment of the judgment in September, 1896. The plaintiff contends that this assignment did not affect the crop of the year 1895. This is a controversy not germane to the appeal and raises a question of fact which can be settled better in the court below than here. Besides, the counsel for Gooch admitted that Gooch bought the judgment in fact for Wheeler, and the latter, if any one, should be made party to the action as the "party in interest." Code, 177. This, however, would present the singular spectacle of the same person being plaintiff and one of the defendants. The motion is denied. The costs of this court will be divided. Code, 527 (2).

Judgment modified.

Cited: Williams v. Hughes, 139 N.C. 20; Vanderbilt v. Johnson,141 N.C. 373; Phillips v. Little, 147 N.C. 283; Horner v. Water Co.,156 N.C. 496.