6834

#### CAUTHEN v. CAUTHEN.

X. Judgment — -Partition.—The scheme of settlement in this case provided in the Circuit decree appealed from is in conformity with the previous judgment of the Court, and under it the appellant is only required to pay interest on his bid for the land less the credits established in his favor, from day of sale.

2. Costs. — Circuit decree construed to provide for payment of costs out of general fund, but as there is now litigation over the costs, the amount set aside to pay costs should be held until this litigation is determined.

Before Aedrici-i, J., Lancaster,

June, 1907.

Affirmed.

Action by W. B. Cauthen, administrator, and Arista Cauthen against Alexander Cauthen *et al.*Prom Circuit order of final settlement, plaintiff W. B. Cauthen appeals.

*Messrs. W. C. Hough*and *R. B. Allison,*for appellant.

*Mr. Ernest Moore,*contra.

March 30, 1908.

The opinion of the Court was delivered by

Mr. Justice Woods.

This case has been before this Court twice before (70 S. C., 167, 49 S. E., 321, and 76 S. C., 226). Pull statements of facts were made in the former *457appeals. This appeal is from an order of Judge James Aid-rich miade to carry into effect the last decree of this Court.

1 The contention of the appellant W. B. Cauthen that the Circuit decree is not in conformity with the judgment of this Court rests on misapprehension. As we understand, W. B. Cauthen has been in possession of the land since he bid it off on 4th December, 1905. He is, therefore, liable for the interest on his bid less all the credits which were established in his favor by the former judgment of this Court. This is the scheme adopted by Judge Aldrich in his decree.

The following statement will show that Cauthen owes the clerk on his bid $2,846.87, with interest from 4th December, 1905:

The 470-acre tract brought..................$1,825 00

The 384-acre tract brought.................. 6,000 00

Gross sales................................$7,825 00

Amount of costs as taxed.................... 448 85

Net sales..............................$7,376 15

Amount of judgment or claim reported by referee, ordered to be paid first.....................$3,299 64

Interest on same from 26th September, 1905, the date to which referee computed, to 4th December, 1905, the date of sale................ 43 62

- 3,343 26

Surplus proceeds of sale........... . $4,032 89

The interest of W. B. Cauthen in the surplus proceeds of sale is three-tenths ....................... 1,209 87

*458Amount of Cauthen’s bid.......... $6,000 00

Amount of claim reported by referee, $3,299.64, less $1,400.00 paid Green & Hines for Cauthen......$1,899 64

Interest on amount reported by referee, $3,299.64'from 26th September, 1905, to 4th December, 1905. 43 62

Cauthen’s interest in the surplus proceeds of sale.................. 1,209 87

- 3,153 13

All that Cauthen could be required to pay at the time of the *sale.........*$2,846 87

He, therefore, owes this amount and interest thereon from 4th December, 1905.

2 This is the statement on which appellant’s counsel claims the settlement should be made, and it carries out the decree of Judge Aldrich. It is true the decree did not in express words provide for the payment of the costs, but we think that was implied, and if appellant’s attorney regarded it not sufficiently clear on this point, application should have been made to Judge Aldrich to provide for the costs. *

As we understand, the sum of $448.85 deducted from the bids in the foregoing statement covers all costs. As to part of this taxation of costs there is litigation between the parties, and the fund reserved to pay the disputed costs will be distributed hereafter according to the result of the litigation about the costs.

The judgment of this Court is, that the judgment of the Circuit Court be affirmed.