Claim and Delivery — Landlord and Tenant — Cost — Parties.
1. Where, in claim and delivery proceedings under which the entire crop raised by the tenant was delivered to the landlord, the latter was adjudged entitled to one-fourth of the crop as rent, it was error to charge him with any part of the cost of gathering and marketing the crop.
2. Where the plaintiff in claim and delivery proceedings for a crop was adjudged to be entitled only to a part thereof, he should be charged with only one-half of the fees of a referee who had been appointed with his consent to appraise the value of the crop.
3. Where a plaintiff in claim and delivery proceedings for a crop was adjudged to be the owner of a part thereof, against defendants who claimed the whole, and were proceedings to convert it, costs should be allowed to such plaintiff under section 525(2) of The Code.
4. Where, pending an appeal in an action by a receiver involving the title to a property or the proceeds of its sale in which a judgment had been rendered in favor of one of the defendants for a part of the fund in plaintiff's hands, a motion was made in this court to substitute the assignee as party plaintiff, which was resisted by the plaintiff upon the ground that the assignment did not affect the property in dispute: Held, that there was an issue of fact raised, not germane to the appeal, which could better be settled in the court below.
5. Under section 177 of The Code an action must be prosecuted by the real party in interest; hence, where an assignment of a judgment for one of the defendants against the plaintiff was made during the pendency of the appeal, and it appeared that the judgment was brought for another person, such person and not the nominal assignee should be substituted as plaintiff under section 975 of The Code.
CLARK, J.
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.