#### D. G. MORISEY v. JOHN E. SWINSON.

Petition to Rehear — Mortgagee in Possession — Rents and Profits.

On the former hearing, this Court overlooked the defendant’s exception that the referee did not charge the plaintiff mortgagee in possession with rents and profits up to February Term, 1889, the date of' trial: Held, that the defendant is entitled to .the rents and profits, as claimed, but, as the facts are in some doubt, a further account should be taken and the judgment corrected so as to conform to the facts.

Petition by defendant to rehear the decision of this, case, made at September Term, 1889. (See 104 N. C., 555).

The facts sufficiently appear in the opinion.

Mr. W. R. Alien, for plaintiff.

Mr. H. L. Stevens, for defendant (petitioner).

MerrimoN, C. J.:

This is an application to rehear the case of Morisey v. Swinson, 104 N. C., 555, decided at the last term, upon the ground that the Court failed to advert to the third exception of the defendant therein to the report of the referee, which exception was in these words: “The referee errs in 'stopping the accounting for the rents and profits of the mortgage premises at 1884, when the plaintiff is still in possession of the mortgage premises, cultivating the lands and using the store-house for a guano-house, and is in receipt of the rents and profits up to February Term, 1889. It seems that this exception may have been overlooked. The record was voluminous, confused, and, to some extent, misleading. The plaintiff excepted to the report mentioned, on the ground that rents were allowed to the defendant up to the time of the trial, and this may have led the Court to lose sight of the defendant’s exception to the contrary. The plaintiff now earnestly insists that rents were allowed *222to the defendant as claimed by him. It seems to us otherwise.

This Court, overruling the plaintiff’s exception, decided that the defendant was entitled to rents for the time claimed by him. If the account did not embrace them for that time, it should have done so. As the matter is in some doubt, the judgment of this Court should direct the Court below to inquire how the fact is, and, if need be, direct a further account to be taken as to the rents, and correct the judgment so as to make it conform to the facts as, upon inquiry, they may appear to be.

The case specified in the petition must be reheard, and the judgment therein of this Court modified in accordance with this opinion, and, as so modified, certified to the Superior Court, to the end that further steps may be taken there in the action, according to law.

Petition allowed.