after stating tbe material facts: It is apparent from tbe record and judgment that tbe merits of this case have not been reached, and there is danger of doing grave injustice to tbe plaintiffs if tbe facts are not more definitely stated.
Tbe plaintiffs restricted their case, as presented here, to one exception, which was that relating to tbe ruling of tbe court upon the item as to tbe feeding and keep of tbe mules, asserting that tbe judge bad not properly found and stated tbe facts 'connected with it, and further, and more particularly, that the referee decided this item with them, and that tbe judge should not, therefore, have reversed this ruling and given judgment for tbe defendants without himself finding and stating tbe facts and bis conclusions of law, so that exception could properly be taken to them. The referee finds that this credit, which was allowed the administrator, O. C. Davis, was an unintentional error. This surely must have been overlooked by the usually careful and painstaking judge who presided at the hearing of this case. No specific allusion is made to this item in the administration account of $1,809.50 for feeding the mules, and there is no finding, and certainly no adequate statement of the facts to sustain the judgment, or to enable us properly to consider and pass upon it.
It was not the question whether O. C. Davis, as administrator, had acted “honestly and conscientiously” in the execution of his trust, but whether he had negligently collected the assets of the estate, as the law required of him, and legally disbursed them, and when we come to consider the question as to the item of $1,809.50 raised by the plaintiffs’ exception, we must necessarily inquire whether the defendant fed the mules from corn, fodder, etc., belonging to the estate, as was contended by the plaintiffs, or whether, in doing so, he used his own money in the purchase of their food, or his own corn, fodder, etc. This was the vital question for decision, and yet there is no finding of fact by the judge upon which we can base that crucial decision in the case. ¥e cannot adopt the findings of the referee and sustain the judgment, as he found with the plaintiffs, and we are required, in order to sustain the ruling of the court, to do so in total ignorance of the real facts as to the disputed item, and injustice may thereby be done to one or the other of the jmrties, which must not happen, if we can fairly and legally avoid such an untoward result.
In Smith v. Smith, 123 N. C., 229, a case in principle somewhat like-this, at p. 234, the Court, after questioning the justice of permitting the statute of limitations to be pleaded at that stage of the case, says: “The court allowed the motion of defendant for leave to amend the answer and plead the statute of limitations, and defendant filed his plea accordingly. And thereupon the Court doth adjudge that the plaintiff’s cause *113of action is barred by tbe statute of limitations. Tbe judgment further declared that tbe defendant’s exceptions to tbe report and account filed are allowed, and tbe plaintiff’s application for an injunction to restrain tbe defendant from selling tbe land to collect tbe debt referred to in tbe pleadings as per note and mortgage is disallowed. Tbe last was clearly only tbe conclusion of tbe Court as to tbe legal effect of tbe statute of limitations upon tbe indebtedness of tbe defendant to tbe plantiffs as set out in tbe complaint; for it was made without any finding of facts by bis Honor. When tbe judge finds no facts, it is presumed that be adopted those found by tbe referee. McEwen v. Loucheim, 115 N. C., 348; Bancroft v. Roberts, 91 N. C., 363. But it is apparent that be did not adopt tbe findings of tbe referee, for tbe referee found them all in favor of tbe plaintiff, and tbe judgment is against tbe plaintiff. In order that tbe defendant’s exceptions to tbe report of tbe referee should have been sustained, it was necessary for tbe court to have reviewed and set aside tbe facts found by tbe referee, and to have found tbe facts himself in favor of tbe defendants. This be did not do. As, therefore, there was no finding of facts by bis Honor, and tbe findings of tbe referee were not approved, there is error in that part of tbe judgment which sustains tbe defendant’s exceptions and denies tbe application for tbe injunction.” Tbe judgment in this case is not as much warranted as was tbe one in that case, for here tbe judge approved tbe referee’s findings of fact, and then decided contrary to them, as tbe referee found tbe facts with tbe plaintiffs and disallowed tbe credit of $1,809.50, for feeding tbe mules, to tbe defendant, which now appears to have been tbe correct view of this item in tbe account. This evidently was an inadvertence on tbe part of tbe learned judge, as tbe referee’s findings of fact and tbe allowance of tbe credit for $1,809.50 cannot well stand together. If tbe judge intended to allow tbe credit, be should have found facts, as said in Smith v. Smith, supra, which would have sustained bis- ruling, and to that extent be should have disapproved tbe findings of tbe referee.
We held in Thompson v. Smith, 156 N. C., 345: “If there is any evidence to support tbe findings, and no error has been committed in receiving or rejecting testimony, and no other question of law is raised with respect to tbe findings, we accept what tbe judge has found as final, as we do in tbe case of a jury. When exceptions are taken to a referee’s findings of fact and law, it is tbe duty of tbe judge to consider tbe evidence and give bis own opinion and conclusion, both upon tbe facts and tbe law. He is not permitted to do this in a perfunctory way, but be must deliberate and decide as in other cases — use bis own faculties in ascertaining tbe truth, and form bis own judgment .as to fact and 'law. This is required not only as a check upon tbe referee and a safeguard against any possible error on bis part, but because be cannot review tbe *114referee’s findings in any other way.” Malloy v. Cotton Mills, 132 N. C., 432; Lambertson v. Vann, 134 N. C., 108; Clark’s Code (3 ed.), p. 564, and cases there collected; Ramsey v. Browder, 136 N. C., 251; Comrs. v. Packing Co., 135 N. C., 62.
The trouble in this case is that there is confusion, if not contradiction, in the ruling of the court, when considered in connection with the referee’s findings of. fact, and we cannot proceed to judgment without having the two in some way reconciled with each other.
The judgment will be set aside, which will leave the report of the referee before the court for its further consideration, but with special reference to the item of $1,809.50 for feeding the mules, about which the judge may adopt the referee’s findings of fact, and his conclusion of law in favor of the plaintiffs, or he may reverse or modify the same and find the facts himself, or take such other action as may conform to the course and practice of the court, and as will disclose the legal and equitable rights of the respective parties, a final judgment to be rendered, subject to exception and appeal.
There is error in the judgment and proceedings, and this will be certified.
Error.