Pilkington v. Cotten, 55 N.C. 238, 2 Jones Eq. 238 (1855)

Dec. 1855 · Supreme Court of North Carolina

55 N.C. 238, 2 Jones Eq. 238

RICHARD PILKINGTON against STEPHEN W. COTTEN.

In a reference to a Clerk and Master in Equity, to ascertain the value or profits of property, the general rule is, that he should report his own judgment according to his belief of the testimony, and not a conclusion. arrived at by averaging the sums estimated by the witnesses.

The iñode of ascertaining value by averaging the sums proved by the witnesses, is an exception to the general rule, only to be resorted to from necessity.

The opinion of a Clerk and Master, that a slave is worth $1200, is strongly' corroborated by the fact that he hired for $150 per year, and will be sustained against the opinions of many who estimated his value at lower sums.

Where it appears that the Master fixes a charge for hires and profits at a given sum, 'on the ground that interest is not to bo allowed, it is no ground of exception that he does not afterwards allow interest on them.

Cause removed from the Court of Equity of Chatham County:

The bill was filed 'for the redemption of certain property, real and’personal, and at the last term of this Court it was declared to be tbe opinion of the Court, that the plaintiff was entitled to redeem a certain negro slave, named Nathan, upon the payment of the sum paid by defendant, with interest; accordingly an interlocutory decree was made, referring to the Clerk and Master in Equity of Chatham, to enquire' and report as to the present value of the slave in question, and his hire for the time he has been in the defendant’s possession, and the amount of the debt for which the slave was security, with interest thereon.

Besides the slaves sought to be redeemed, a tract of land lying -on Terrill’s creek, was also conveyed in trust to secure the debt due by the plaintiff to the defendant, as an additional security; and it appears that for several years a part of this land, to wit, about thirty acfes was in the possession and cultivation of the defendant. The whole claim of .the defendant against the plaintiff has been satisfied by the sale of the other property held in trust for its payment, and therefore, the plaintiff insists that the defendant should account with him for the issues and profits of this land. The defendant avers in his answer, that the land used and cultivated by him was no part of the land owned by the plaintiff, but belonged to one Samuel Pilkington, and thereupon, at the last term of the Court, it was ordered that it be referred to the Clerk and Master of Chatham, aforesaid, “ to enquire and ascertain whether the defendant Cotten is, or has been, in possession of any part of the plaintiff’s land, and if so, how much, for what length of time, and the annual nett rent therefor,” and that he report thereon to the present term of this Court.

In obedience to these several references, Mr. Waddell, the Master, reported that Nathan is worth $1200 ; that he has been ■worth during the last six years $640, making $1840; that the debt for which he was pledged is, with interest, $332,10, leaving a balance due plaintiff $1507,90.

lie also reports, that the land occupied by the defendant, does belong to the plaintiff; that the cultivation was continued for ten or twelve years, and that it was worth from forty to fifty dollars per annum. In conclusion, he charges the dm fondant with a total of $480 for land rent, which being added to the other balance of $1507,90, makes a total against defendant of $1987,90.

The evidence taken on these enquiries, accompanies the report.

The defendant excepts to the report, because the Clerk and Master takes the highest price put upon Nathan by a single witness, whereas there were several, who placed his value lower, and some much lower, and that from these statements, the amount allowed ought to have been averaged at $900.

The defendant excepts also to the report, on the subject of the occupation aiid rent of,the land; that the conclusion of the referee is against the weight of the evidence.

The plaintiff excepts, because the referee does not allow interest on the hire and rent found by him.

The cause was again heard upon these exceptions.

Manly and E. Q. Maywood, for plaintiff.

Maughton and Winston, Sr., for defendant.

PeaRSON, J.

The defendant’s exceptions in respect to the Master’s estimate of the value and hire of the slave Nathan, are overruled. The exceptions are based on the ground that the Master ought to have adopted an average of the estimate made by ,tho witnesses on both sides. This position is not tenable. The general rule is, that the Master should form an independent opinion of his own, according to the weight of the testimony, and if one of the witnesses, from his intelligence and means of information in regard to the matter of en-quiry, is, in the opinion of the Master, more to be relied on than a half dozen of the other witnesses, it is proper that the Master’s opinion should adopt the estimate of this one most” reliable witness. If this rule in respect to “ the average of the estimate of witnesses,” should obtain, the decision of questions ef tikis kind would not depend upon the sound judgment of the Master, but upon the number of witnesses that it may be in the power of each party to^jroduce. Morrison v. Mc Leod, 2 Ire. Eq. 108; Walling v. Burroughs, 1 Jones’ Eq. 21. This mode of arriving at a conclusion by an “ average of estimates” is put as an exception to the general rule above stated, and is tolerated only from necessity in certain cases.

"We-concur with the Master, that if a negro boy, eighteen years of age, has such qualities and recommendations as will eommand a hire of $150 per annum, the value of the boy cannot be-Ifess than $1200; the opinion of a dozen witnesses to the contrary notwithstanding.

It may be proper also to say, that the inclination of the Court is to concur with the Master in matters depending upon mere-estimates of value, and Ins opinion is taken prima fade to be- correct, unless error be shown.

The-plain tiff’s exception in regard to the interest upon the annual hires is overruled. The Master evidently fixes the amount of hires, upon the ground that annual interest is not to be allowed, and we see no reason to disturb, the- result at ■which he has arrived.

In respect to-the land mentioned in the pleadings, the cause is retained, with liberty to the plaintiff to bring..- am action of ejectment, in which he is to be the lessor, and the defendant is to admit that Steadman and Bynum have-re-conveyed to Richard Pilki'n-gton-, or to the plaintiff as- his heir; and that lie (the defendant) is in possession, so as to-put the question solely upon the title of Biehard Pillcingfon.

Pee. CueiaM. Decree-accordingly.