Rich v. . Morisey ( 1908 )

The plaintiff introduced the final account of D. G. Morisey, administrator of O. B. Morisey, deceased, filed 19 March, 1901, by which it appears that he charged himself with proceeds of sale of personalty $150, and proceeds of sale of land $1,500. He credits himself with the mortgage debt and "amount retained on account." $614.97, clerk's fees and amount paid attorneys $20, leaving a balance of $12.11 which he retains as commissions. No evidence was introduced tending to impeach the account. His Honor, having adjudged that the feme plaintiff was entitled to redeem, may have ordered a reference to ascertain the status of the account between D. G. Morisey's estate and plaintiff, or, as he did, ascertain the facts from the pleadings and issues or questions submitted to the jury. The principle upon which the adjustment of the account was to be stated was correctly adopted by his Honor. Plaintiff was required to pay the indebtedness of her father for which the land was liable, subject to a reduction of the rents and (48) profits, for which the mortgagee in possession was liable.

Plaintiffs have filed a large number of assignments of error. Many of them are technical and do not affect the merits of the case or the rights of the parties. The amount of the mortgage debt is fixed, and the jury have fixed the amount of the annual rents to the time of D. G. Morisey's death and subsequent thereto. To this extent there is no complication.

It is true that a mortgagee has no right to tack an unsecured debt to the mortgage debt and demand payment of both as a condition to redemption. In this case, upon the death of O. B. Morisey, his heir has a right to redeem by paying the mortgage debt. Immediately upon his doing so, the land was liable to be sold by the administrator to make assets to pay any other indebtedness subject, of course, to the widow's dower and the homestead rights of the infant children. These are eliminated because the widow is dead and the plaintiff is now of full age. While the feme plaintiff elects to repudiate the sale and claims the right to redeem the land, she must do equity by paying such debts as her ancestor would have been bound for, to which the land could have been subjected.

His Honor correctly held that, in the absence of any impeachment, the duly verified final account of D. G. Morisey, administrator, was to be treated as correct. In Allen v. Royster, 107 N.C. 278 (p. 283),Davis, J., says: "The statute makes such account, thus examined, endorsed and filed in the office of the clerk of the court, prima facie evidence of its correctness." It shifts the burden of proof, as to the correctness of what it contained, to him who alleged the contrary. InCollins v. Smith, 109 N.C. 468, the same Justice says: "There is no allegation of any fraud or mistake in the final account so audited, nor is it attacked in any way by plaintiff and it is, at least, prima facie (49) correct." Coggins v. Flythe, 113 N.C. 103. This being so, his Honor adopted the amount charged by the administrator as proceeds of the land, which was found by the jury to be its full value. He credits him with the mortgage debt and the account which he held against his brother, O. B. Morisey. Unless this course is pursued the plaintiff will recover the land free from the amount due by account, and, in addition, the rents and profits from 1884 to 1901 at $125 annually, and since 1901 to the present at $50, she having received the rents from the 50 acres devised to her. Upon this recovery, the executor, J. K. Morisey, would be entitled to bring suit on the account and, upon recovering judgment, have the land subjected to the payment thereof. In that suit the plaintiff, or the personal representative of O. B. Morisey, would be entitled to have rents of the land credited on the account, all of which would, after long and expensive litigation, bring the parties to the same result reached by his Honor. We do not find any evidence of actual fraud on the part of D. G. Morisey. He paid off a debt which was a lien on his brother's land in 1874 and indulged him until his death, 1883. In the meantime, he credits his brother on account to the amount of $614. He buys the land at its full value and at his death gives to his brother's only child evidently the most valuable part of it, and a small pecuniary legacy. The plaintiff could not be permitted to plead the statute of limitations against the account. Costen v. McDowell,107 N.C. 546. The plaintiff asks the equitable aid of the court and is given the land with rents for twenty-eight years. The loss falls upon innocent persons who have purchased the land for full value. She is required to pay the honest debts of her father, etc. To decree her the land and rents without this condition would be inequitable and unjust. This Court has uniformly held that while it will, in such cases, set aside the sale, it will require the party, in whose behalf the equity is enforced, to account for the purchase money, at least to the extent (50) that the land has been exonerated from the claims upon it. Cardv. Finch, 142 N.C. 140. In Scott v. Dunn, 21 N.C. 425, the executor, under a mistake in regard to his power, sold the land of his testator; the sale was set aside at the suit of the devisee. The purchase money had been applied to the payment of debts of the testator. It was held that the purchaser was subrogated to the rights of the creditor and the amount paid on the debts must be accounted for. Gaston, J., after declaring the equity, says: "As all parties are before the Court, complete justice may be done by deciding direct relief to the plaintiff. . . . The doctrine of substitution, which prevails in equity, is not founded on contract but, as we have seen, on the principles of natural justice. Unquestionably the devisees are not to be injured by the mistake of the executor, as to the extent of his power over the land; but that mistake should not give them unfair gains. The executor was not an officious intermeddler in paying off the debts of his testator; and his erroneous belief that he could indemnify himself in a particular way, should not bar him from obtaining indemnity by legitimate means. It is not a question here, whether a mistake of law shall confer any rights, but whether such mistake shall be visited with a forfeiture of rights, wholly independent of that mistake." Perry v. Adams, 98 N.C. 167.

His Honor, having all the parties before him, has adjusted their rights upon fair equitable principles all in conformity to the decisions of this Court. We are also of the opinion that the principle upon which the rents were applied is correct. After a careful examination of the record in both appeals, we find no error in the judgment. The feme plaintiff gets a tract of land upon the payment of $164, upon which her father permitted a mortgage for $627 to stand for ten years, paying no interest and contracting an account for $614. We do not find any evidence of actual fraud on the part of D. G. Morisey. By his mistake as to his right to buy the land he had discharged it practically (51) from indebtedness, and his niece, to whom he gave fifty acres, "comes to her own," while the defendant Moore sustains the loss. Neither party will recover amount paid for printing. The judgment in both appeals must be

Affirmed.