Whitehurst v. . Hinton , 222 N.C. 85 ( 1942 )

DEVIN. J., not sitting. The facts are fully stated in Whitehurst v. Hinton, 209 N.C. 392,184 S.E. 66, a former appeal in this cause.

After the remand on the former appeal plaintiffs tendered an order of reference. In lieu of the order tendered the court signed an order appointing a referee and directing that he "shall state an accounting and hear such further testimony as the parties to this action may desire to present or offer in support of, or tending to establish the respective contentions of the parties with respect to the determination of what amounts, if any, the defendants are indebted to the plaintiffs on account of rents and profits received by the defendants from lands of which plaintiffs and defendants are seized and possessed as tenants in common since the date on which it was finally adjudged the paper writing under which they claim is not the last will and testament of John L. Hinton, deceased." The order further granted leave to the parties to "amend or recast their pleadings in accordance with the opinion of the Supreme Court herein rendered, as heretofore certified." Plaintiffs excepted to so much of said order as limited the reference to the determination of the amounts, if any, due plaintiffs for rents and profits accruing after judgment in thecaveat proceeding invalidating the will of John L. Hinton, deceased, and appealed. The former opinion, Whitehurst v. Hinton, supra, decided (1) that, as there is no evidence in the record that defendants, by fraud or undue influence, wrongfully procured the execution of the will of John L. Hinton, deceased, or that they had any knowledge or notice that the validity of said will would be attacked, the plaintiffs may not recover rents and profits for the period from the probate of the will to the date it was adjudged to be void; (2) that plaintiffs are entitled to recover rents and profits received by defendants after the invalidity of said will was adjudged; and (3) the grantees of defendants under deeds executed prior to judgment in the caveat proceedings are innocent purchasers and acquired good title as against plaintiffs.

Did the Court, in that opinion, hold that defendants are not accountable for the proceeds received from the sale of land and timber prior to thecaveat judgment? This is the real question this appeal seeks to present. There are at least two reasons why the question is not now properly before us for decision.

1. The court below was authorized to limit the reference to an accounting, as set out in the order. The order is couched in the exact language of this Court as used in the former opinion. Appeal therefrom is fragmentary and premature. Leroy v. Saliba, 182 N.C. 757, 108 S.E. 303, and cases cited; Johnson v. Ins. Co., 215 N.C. 120, 1 S.E.2d 381.

2. It does not appear that the court ruled either pro or con on the controverted question. The reference may have been limited by reason of the language of this Court, or, perhaps, the court may have concluded that such issues as are presented by the pleadings on that question are readily triable by jury without the intervention of a referee. On this record we are unable to say and are unwilling to decide that the judge was motivated by the conclusion plaintiffs are entitled to recover only the rents and profits accruing after the judgment in the caveat proceeding.

The plaintiffs contend that their leave to amend was unduly restricted. This was discretionary with the court below. C. S., 547; Biggs v. Moffitt,218 N.C. 601, 11 S.E.2d 870; Smith v. Ins. Co., 208 N.C. 99,179 S.E. 457; Gordon v. Gas Co., 178 N.C. 435, 100 S.E. 878; Hogsed v.Pearlman, 213 N.C. 240, 195 S.E. 789; Maggett v. Roberts, 108 N.C. 174.

Even so, plaintiffs have tendered no amendment. Why should we surmise that such amendment as they may tender may be rejected as not being "in accordance with the opinion of the Supreme Court herein rendered." They complain before they are hurt.

Appeal dismissed.

DEVIN. J., not sitting.