EARP v. RICHARDSON. Messrs. Gilliam & Gatling, Lewis & Strong, and G. M. Smedes, for plaintiffs. Messrs. Busbee & Busbee, for defendants. ASHE, J. This was a petition to rehear the decision made in this case at January Term, 1878, of this court, and reported in 78 N. C., 277. The defendant in his petition assigns the following errors: 1. That it binds a third person trading with an agent who is the son of the principal by the undisclosed instructions given to the agent, even though the note, the subject of the trade, was in the hands of the son, claimed by him as his own, treated as his own, and thought by the third person to be the property of the agent, and although the principal did not disavow the action of his agent even after the trade. 2. That stress is laid upon the fact that the note or bond was not endorsed to the son, even though it was likewise not endorsed to the father. 3. That it decides that an action for the possession of a note under seal analogous to an action of trover, is not barred by the statute of limitations until after the collection of the note. As to the first assignment of error: This court held, and we think correctly, that the authority given by John Earp to his son Taylor Earp, to buy a mule from Hocutt by giving him a credit of one hundred and twenty-five dollars on the note, was a limited power; and as the note was afterwards traded to the defendant after it became due, he was affected with notice, and it was incumbent on him "to look out for the power" of Taylor Earp. It may be presumed from the finding of the referee that John Earp had notice of the written contract entered into by Taylor Earp with the defendant; but he expressly finds that he did not know of the nature of the last agreement between Taylor Earp and the defendant; and in EARP v. RICHARDSON. that view of the case he could not be expected to disavow the transaction, and his failure to do so could not be construed into an acquiescence from which a ratification of the act could be inferred. When the agency is to be proved by the subsequent ratification and adoption of the act by the principal, there must be evidence of previous knowledge on the part of the principal of all the material facts. 2 Greenl. Ev., §66. As to the second assignment of error: We cannot concur in the proposition that a decision of the court should be reversed because in considering the case it laid stress upon a fact that was immaterial, when it appears it did rely upon another fact that was material, and came to a correct conclusion of law. As to the third assignment of error: Conceding that the court did err in assuming the position that the statute of limitations would not bar until after the collection of the note, this court at the same time held that as the defendant stood in the relation of bailee or trustee to John Earp, the statute did not begin to run until after a demand; and no demand having been made, the statute did not bar the action of the plaintiffs. There is no error, and the decision made in this case at January Term, 1878, is affirmed. No error. Affirmed. HAYWOOD v. Daves. ELIZABETH G. HAYWOOD, Ex'r. v. ELIZABETH B. DAVES. Petitions to Rehear-Practice Concerning-Decision of Foreign Court, effect of here. 1. No case will be reviewed upon petition to rehear, unless it was decided hastily and some material point was overlooked, or some direct authority was not called to the attention of the court. 2. The decision of the court of another state, in the interpretation and administration of its own laws in respect to property subject thereto and within its jurisdiction, is binding upon the courts of this state. (Watson v. Dodd, 72 N. C., 240; Hicks v. Skinner, Ibid, 1, cited and approved.) PETITION to Rehear, filed by plaintiff and heard at June Term, 1879, of THE SUPREME COURT. See same case, 80 N. C., 338. The error assigned is: Because by the decision and judgment the court held that in dividing the sum of money specified in the record as having been received by one Jackson, (agent of the parties,) the whole of the three sums of $248.20, $191.13, and $246.55, are to be charged against the five ninths of said fund in the hands of said Jackson, belonging to the plaintiff as executrix of Jane F. Haywood, and that no part of said three sums is to be charged against the four-ninths of said fund belonging to the defendant. The plaintiff is advised that the decision and judgment are erroneous and should be reversed, and that only five-ninths of the three sums ought to be charged against the five-ninths of the fund in the hands. of Jackson to be received by plaintiff. Mr. E. G. Haywood, for plaintiff. SMITH, C. J. At the last term this case was fully and ably discussed by counsel representing the respective parties, HAYWOOD v. DAVES. and after careful consideration determined by the court. The same line of argument was then pursued as that now addressed to us, and to a great extent the same authorities cited and relied on. The additional references are cumulative to the same points. No overlooked aspect of the case has been brought to view upon the rehearing. The frequency of the applications for a revision of the decisions of the court and the readiness of its counsellors who did not appear at the first hearing to certify their opinion that "the judgment was erroneous," induce us to recall what has been heretofore said about the practice and the principle on which it rests: "The weightiest considerations," says PEARSON, C. J., "make it the duty of the court to adhere to their decisions. No case ought to be reheard, upon petition to rehear, unless it was decided hastily and some mate rial point was overlooked, or some direct authority was not called to the attention of the court." Watson v. Dodd, 72 N. C., 240. This is repeated with emphasis by READE, J., delivering the opinion in Hicks v. Skinner, 72 N. C., 1; and is approved at the present term in Devereux v. Devereux, post, 12. The argument upon the second hearing, as before, proceeds upon an alleged error in the ruling of the supreme court of New York, whereby the unpaid purchase money due from the vendee is charged with the costs and expenses incurred by her in the suit to divest the legal estate passing to the infant devisees under the will of the testatrix, and transferring the same to her. Whether right or wrong, such decree was rendered in the action for specific performance against those devisees, in a case where the fund was under the control of the court, and its jurisdiction was ample. The necessity of this proceeding was superinduced by the death of the testatrix and the devises in her will, and by no act or omission of the defendant. She and the adult devisees were competent to convey, and did convey to the vendee their individual estate in the land. The suit was instituted HAYWOOD v. DAVES. to perfect the title, required under the contract against those who, having acquired a share of the estate, were incapable, by any act of their own and without the aid of the court, of passing the same to the vendee. In granting relief and thus fulfilling the conditions of the bond for title, the court charged the purchase money remaining unpaid with the expenses rendered necessary by the death of one obligor and the disability of some of her devisees. Under the laws of this state it is plain the devisees would acquire a mere legal estate without beneficial interest therein, and the testatrix' share of the money into which the land devised has been converted by the contract of sale would pass at her death to her personal representative. But the case is governed by the laws of New York, the situs of the devised land, and in the opinion of the court the infant devisees were declared to be entitled to a ratable share of the fund substituted therefor, diminished by deducting the costs and expenses aforesaid. The decree was operative and effectual in making the appropriation. If it is erroneous, (and we are not at liberty to impute error to the court of another state in the interpretation and administration of its own laws in respect to property subject thereto and within its jurisdiction) we have no revisory power over the action of that court, and must recognize what has been done as final and conclusive. If it be conceded that the plaintiff's money has been wrongfully applied in the payment of charges for which neither the testatrix nor herself ought to have been held liable, it would be manifestly unjust to put a share of the loss upon the defendant who is in no default whatever, and has complied fully with her own part of the contract. It is needless to do more than refer to the former opinion and the reasons therein given for the conclusion arrived at, and to say that our convictions upon the re-argument are unchanged. There is no error in the judgment and it must be affirmed. No error. Affirmed. |