Opinion
(September Term, 1892.)
Rents and Profits — Limitations — Charge — Measure of Damages — Agency — Trustee.
1. In an action for the value of the rents and profits of a tract of land, it appeared that the defendant, who was administrator of plaintiff's intestate, entered as such into the possession of said land and received the rents and profits to his own use for eleven years. The court charged that the plaintiffs were entitled to recover the reasonable rental value for the entire period: Held, no error.
2. The defendant was properly allowed a deduction for taxes and improvements.
3. The defendant, according to his own admission, assuming to act as plaintiff's agent in the collection and application of the rents, cannot plead the statute of limitations unless there was a demand and a refusal, and then only from the time thereof.
4. This action was properly brought within three years after he gave up possession of the land.
APPEAL at Fall Term, 1892, of BURKE, Armfield, J. (298)
No counsel for plaintiffs. (299)
S. J. Ervin for defendant.
The defendant admits that in 1877 he was appointed administrator of C. Schuffler, and in 1878 took possession of a tract of land, which had descended from his intestate to the plaintiffs, his heirs at law, and that he continued in possession of said land, receiving the rents and profits for eleven years, or till 1889.
His Honor told the jury that the plaintiffs were entitled to recover "the reasonable rental value of the land for the eleven years he had it in charge under proper cultivation."
We think this was the proper measure of the defendant's (300) liability upon his own statement of the matter. The jury found that the annual rental value was forty dollars, and from this his Honor allowed a deduction of $117.60 for taxes on the land paid by defendant, and for improvements, and gave judgment for the balance.
We do not think that the statute of limitations bars the right of any one of the plaintiffs to recover of the defendant his or her share of the balance. According to his account, he assumed to act as the agent of the heirs to collect their rents, in order that he might apply them to the payment of the debts of his intestate in exoneration of their land. Having failed to so apply this fund, he must pay it to those to whom it belongs. He received their rents as agent for the plaintiffs, and no statute of limitations runs in his favor till demand and refusal, of which there is no evidence. This action was brought within three years after he gave up possession of the land.
NO ERROR.
Cited: Lafferty v. Young, 125 N.C. 299.