Absalom Farmer, the plaintiff's intestate, being entitled to one-ninth part of a number of slaves and other property, after the death of his mother, Elizabeth Farmer, sold and conveyed the same to the defendant's testator, Jesse Barnes, by deed, dated 2nd of May, 1828, for the sum of two hundred dollars, in which said deed is an acknowledgment and acquittance for that sum of money.
Six years afterwards, to wit, on the 10th of May, 1834, they (Farmer and Barnes) came to a settlement of their affairs, and the former gave the latter a note, under seal, for $179,57.
Shortly afterwards, to wit, on the 24th of the same month, the said Jesse Barnes (the defendant's testator) executed and delivered to the plaintiff's intestate, Farmer, the following deed, viz: "The bargain and contract is such, between Jesse Barnes and Absalom Farmer, that, after retaining enough property out of his part of Elizabeth Farmer's estate, to pay myself what the said Farmer justly owes me, then, if any thing coming, to pay over to said Farmer, or to whom he shall direct; this 24th May, A.D.1834."
Witness, JESSE BARNES, (seal.)
JOSHUA BARNES.
Elizabeth Farmer lived until the year 1852, during which time the property remained with her, and was materially increased in value. In the same year, (that of her death,) by an order of the County Court of Edgecombe, the slaves were sold for a division, and the share of the intestate Absalom, to wit, $1203,47, went into the possession of the defendants, as executors of Jesse Barnes, who had died in the year _____. The amount, for which the slaves were sold, was $10,617,50.
The bill alleges that the plaintiff, as the administrator of Absalom Farmer, demanded a settlement with the defendants, *Page 111 as executors of Jesse Barnes, and that the remainder, after deducting what was due them, to wit, the note of $179,57, with interest, should be paid to him; and that they had refused to make a settlement, pretending that there was nothing due the estate of plaintiff's intestate, and setting up exorbitant claims against his father's estate, far beyond the value of the share in question. The prayer of the bill is for an account.
The defendants, in their answer, admit the deed set forth above, and their liability to account for the sum of $1203,47, but they insist that there is a much larger sum due them than the $179,57 note, given by the plaintiff's intestate to their testator. They say, that on the 10th of May, 1834, the parties, the said Jesse Barnes and Absalom Farmer, had a settlement, preliminary, and with a view, to the deed of defeasance, which was made a few days thereafter, and their testator, having furnished the said Absalom with provisions, to the amount of 179,57, a note was taken for the amount; and at the same time, it was understood and agreed, that the $200, which was paid for the slaves, on their trade in 1828, with interest, was also to be settled and paid out of their share; and that inasmuch as the receipt of that sum was acknowledged by the said Absalom, in his deed of 1828, it was unnecessary to have any other evidence of that indebtedness.
Replication, commissions and proofs. Cause set down for hearing, and sent to the Supreme Court.
Upon the hearing, the liability of the defendants to account being admitted, it was referred to the clerk of this Court, as commissioner, to state an account between the parties, which was done. The commissioner made his report, wherein he allowed the defendants a credit for the sum of $200, with interest from 2nd May, 1828. To this particular of the account stated, the plaintiff filed an exception, and at this term the cause was heard upon the exception. On the 2nd May, 1828, the plaintiff's intestate, executed to the defendants' testator an absolute deed for his interest in certain property, therein described, in consideration of the sum of two hundred dollars, the receipt of which is acknowledged by the plaintiff's intestate, and we are to assume that the money was then paid by the defendants' testator.
On the 10th of May, 1834, the parties had a settlement, and the plaintiff's intestate executed his note to the defendants' testator for $179,57, expressed to be "due for value."
On the 24th May, 1834, the defendants' testator executed a deed, by which he agrees, after retaining out of the property enough to pay him "what the said Farmer" (the plaintiff's intestate) "justly owes me," to pay over the balance, if any, to Farmer. The deed of May, 1828, was then registered, to wit, at May Term, 1834.
The question is, what did the plaintiff's intestate justly owe the defendants' testator in May, 1834?
The note of $179,57, satisfied the words. But it is insisted that the $200, set out in the deed of 1828, should also be included. There is nothing in that deed to create a debt. The $200 was received as the price of the property. It may be, that in 1834, when the defendants' testator agreed to let the plaintiff's intestate have the balance, after retaining what the latter justly owed him, it was the intention to make a debt out of the $200. Such would be the natural inference, in the absence of any other facts, notwithstanding the silence of the deed of 1834, in regard to it, when it may reasonably be supposed it would have been expressed, if such had been the intention, unless the $200 had been paid or otherwise accounted for; but there is this further fact, that on the 10th of May, 1834, just before the execution of the deed, the parties had a settlement, and the note of $179,57, was then executed.
This settlement and note, closing the balance, raises a presumption, that all matters of charge and discharge were taken into the account, especially as it is was admitted, that the *Page 113 settlement was made in reference to the deed of defeasance, which was in a few days afterwards executed.
To rebut this presumption, the defendants allege that, in point of fact, the settlement only included provisions and the like, advanced to plaintiff's intestate after 1828, and that the $200 was not included in the settlement; and no evidence of it, as a debt, was required, because the parties supposed that the receipt in the deed of 1828, was sufficient for that purpose.
It is unfortunate for the defendants, that they are unable to offer any proof of this allegation. The original settlement might have served their purpose, but that is not produced; and in the absence of proof, being governed merely by the face of the papers, we are of opinion, that there is nothing to rebut the presumption arising from the settlement and the execution of the note.
We give no effect to the lapse of time, as the parties were not in an adversary position, and the fund was not received until 1852.
The plaintiff's first exception is sustained. The second is withdrawn. The report will be reformed accordingly.
PER CURIAM. Decree accordingly.