Wooten v. . Walters , 110 N.C. 251 ( 1892 )

This action is somewhat peculiar. Its purpose is to avoid a contract not reduced to writing in respect to real and personal property. The plaintiff recovered the real property, but not the personal property. As to the latter, the court by its judgment settled the rights of the parties favorably to the defendants. The court gave judgment against them for costs, and this they assigned as error. The statute (The Code, sec. 525) prescribes that costs shall be allowed of course in favor of the plaintiff upon a recovery in an action for the recovery of real property, or when a claim to real property arises on the pleadings, or in an action to recover the possession of personal property. But the defendant shall be allowed costs in such actions unless the plaintiff be entitled to costs therein. There is no provision that limits the allowance of costs in favor of the plaintiff in case of only a partial recovery in such action. The language of the statute as to them is comprehensive and without exceptive provision. InWall v. Covington, 76 N.C. 150, it was held that no part of the costs in such action can be taxed against the party recovering. And inHorton v. Horne, 99 N.C. 219, it was decided, in an action to recover personal property, that if the plaintiff establishes his title to only a portion of the property delivered to him under claim and delivery proceedings, he will be entitled to cost. Parties to recover costs only in the cases and as allowed by statute. We think the court (259) properly allowed the plaintiff his costs. R. R. v. Phillips, 78 N.C. 49.

If it be granted that this is not strictly an action for the recovery of real or personal property, then it would be embraced by the statute (The Code, sec. 527) in respect to costs, and costs would be allowed in the discretion of the court; and nothing to the contrary appearing, it would be taken that the court gave judgment in the exercise of its discretion in favor of the plaintiff. Gulley v. Macy, 89 N.C. 343.

Affirmed.

Cited: Field v. Wheeler, 120 N.C. 270; Williams v. Hughes, 139 N.C. 20;Grocery Co. v. Bag Co., 142 N.C. 186; Phillips v. Little, 147 N.C. 283;Willis v. Construction Co., 152 N.C. 106; Cotton Mills v. HosieryMills, 154 N.C. 467; Harvester Co. v. Parham, 172 N.C. 392; Swain v.Clemmons, 175 N.C. 242.