Evans v. Evans

Nicholson, C. J.,

delivered the opinion of the Court.

This cause was before this Court, at the September Term, 1865, when it was remanded to the Chancery-Court at Greeneville, with directions for the sale of the lands of Evan Evans, deceased, for partition, for the ascertainment and collection of advancements, and for an account of the rents and profits of-the lands to the day of sale. The lands were sold, and the sale confirmed. The account, as to rents, was taken and excepted to, but the exceptions disallowed, and the report confirmed.

The amount of rent so found against Henry Evans, was $476, for which judgment was rendered at the May Term, 1869, from which judgment, defendant, Henry Evans, prayed lor and obtained an appeal to this Court. The appeal was allowed by the Chancellor, as in his discretion he had the right to do. We think the appeal was properly allowed, and overrule the motion to dismiss it.

Upon examination of the decree appealed from, it appears that defendant, Henry Evans, was ordered to pay into Court, for distribution, as in former decrees directed, the said sum of $476, with interest as aforesaid. It is said for defendant, Henry Evans, that this decree is erroneous, for the reason that, in ordering a distribution of the rents, it was necessary that the advancement, as well as the rents, should be taken into the account in ascertaining the amount to be paid into Court by defendant, Henry Evans.

It appears that the Clerk and Master, at a former term, had reported advancements made to three of the hers amounting to $391, to which no exception was taken. It appears, also, that in distributing the proceeds of the sale of the land, no notice was taken of these advancements. By sections 2432 and 2433 of the Code, this should have been done. Having failed to collate the advancements in the partition of the proceeds of the sale of the land, the defendant, Henry Evans, had a right to have it done before the rents were distributed. In this respect, therefore, the decree appealed from was erroneous. In collating the advancements and the rents, the whole amount of the rents as well the $476 unpaid as the rent of 1866, of $100, which had been paid, should have been brought into the account, and defendant, Henry Evans, should have had the benefit of a deduction on account of the advancemehts to the three heirs so advanced, so that he would be chargeable with interest on the actual balance due from, him for rents, instead of on the whole amount as decreed. To this extent the decree below was erroneous, and is therefore, reversed. The cause will be remanded to the Chancery Court, where the correction indicated will be made, and the decree in all other respects, be executed and carried out. The costs of this Court will be paid out of the fund arising from the rents.