
    ISAAC D. FARMER, administrator, against JOSHUA BARNES and others, executors.
    
    An acknowledgment and acquittance contained in a deed, is proof that the money was paid, for, and on account of, the property conveyed in the deed ; but it is no evidence, upon the rescission of the deed, that the grantor was to pay the consideration back to the grantee.
    Where there was a settlement of accounts between parties, with a- view of converting an absolute deed into a security, the amount settled and agreed upon, will be prima facie evidence of the correct amount intended to be secured.
    Cause removed from the Court of Equity of Edgecombe County.
    Absalom Parmer, 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 BaeNes, {seal.)
    
    Joshua BabNes.
    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 $10,017,50.
    The bill alleges that the plaintiff, as the administrator of Absalom Farmer, demanded a settlement with the defendants, 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 mate 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 $1203,41", but they insist that there is a much larger sum due them than the $119,57 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 that 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.
    Eeplication, 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 Ms 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.
    Dortch, for plaintiff.
    
      Moore, for defendants.
   PeaesoN, J.

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 24i/t May, 1834, the defendants’ testator executed a deed, by which lie agrees, after retaining out of the property enough to pay him “ what the said Parmer” (the plaintiff’s intestate) “justly owes me,” to pay over the balance, if any, to Parmer. The deed of May, 1828, was then registei1-ed, 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, j ust 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 admitted, that the 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.

Pee CueiaM. Decree accordingly.  