Eason Ex Rel. Eason v. Dew , 244 N.C. 571 ( 1956 )

94 S.E.2d 603 (1956) 244 N.C. 571

Willie James EASON, appearing herein by his next friend, James C. Eason, Plaintiff,
v.
Grace Bishop DEW, Executrix of the Estate of R. P. Dew, Deceased, Defendant.

No. 249.

Supreme Court of North Carolina.

October 10, 1956.

Allen W. Harrell, Wilson, for plaintiff, appellant.

Wiley L. Lane, Jr., Wilson, for defendant, appellee.

BOBBITT, Justice.

The facts agreed negative rather than support plaintiff's allegations as to the existence of a contract between plaintiff and Dew. In this respect, there is a material variance between the allegation and proof. There can be no recovery except on the case made by the complaint. Andrews v. Bruton, 242 N.C. 93, 86 S.E.2d 786; Manley v. Greensboro News Co., 241 N.C. 455, 85 S.E.2d 672.

Are the facts alleged sufficiently established by the facts agreed, to warrant plaintiff's recovery of $756 or any amount by reason of the provisions of G.S. § 44-1 and G.S. § 44-41? When litigants submit a cause on agreed facts, such agreed facts constitute the sole basis for decision. Edwards v. City of Raleigh, 240 N.C. 137, 81 S.E.2d 273.

The agreed facts do not show that notice of lien was filed in the office of the clerk of the superior court as prescribed by G.S. § 44-38 and G.S. § 44-39. The stipulation was simply that. "a notice of claim was filed with the defendant in December 1955." Moreover, the agreed facts do not show that the tobacco sold brought an average price per acre of $756 or any other stated amount. Nor is there any admission in defendant's answer bearing on this matter. Hence, if otherwise entitled to recover some amount, there was no factual basis upon which judgment, could have been entered for plaintiff. But apart from the defects noted, the agreed facts do not sustain plaintiff's right to recover.

The statutory lien is incident to and security for a debt. There can be no lien in the absence of an underlying debt. G.S. § 44-1; General Air Conditioning Co. v. Douglass, 241 N.C. 170, 84 S.E.2d 828; Brown v. Ward, 221 N.C. 344, 20 S.E.2d 324, and cases cited; Grissom v. Pickett, 98 N.C. 54, 3 S.E. 921. Thus, the ultimate question is whether the estate of Dew, the landlord, is indebted to plaintiff on account of the failure of McKeel, Dew's tenant, to pay to plaintiff the amount to which he was entitled under the Eason-McKeel contract.

Eason had no contract with Dew. Nor does it appear that Dew was advised as to the arrangement or agreement Eason had with McKeel. McCoy v. Wood, 70 N.C. 125, and White v. Riddle, 198 N.C. 511, 152 S.E. 501, cited by appellant, deal with different factual situations.

In the Dew-McKeel contract, it was. "agreed that Hugh McKeel could sub-contract part of his crops expected to be grown on the farm to other tenants since he could not himself furnish all of the `labor' necessary to cultivate, harvest and house the crops"; but it was also "understood and agreed that Hugh McKeel and the subtenants were to account to each other."

Under the Easori-McKeel contract, in addition to lodging and $20 per month, Eason was to receive "a share of the crops grown on said lands equal to the average yield per acre of the tobacco grown by Hugh McKeel as tenant of R. P. Dew upon the completion of all tobacco sales for the 1955 season.";

Under G.S. § 42-15, Dew had a preferred lien on the entire crop until the rent and all advancements made and expenses incurred in making and saving the crop were paid. Hall v. Odom, 240 N.C. 66, 81 S.E.2d 129, and cases cited. The crop did not bring an amount sufficient to satisfy Dew's lien. Defendant owes nothing to McKeel.

The Eason-McKeel contract was subordinate to the Dew-McKeel contract. True, McKeel had the right, by sublease, assignment or otherwise, to create a lien on his share of the crop. Glover v. Dail, 199 N.C. 659, 155 S.E. 575. However, any lien created by such subordinate contract made by McKeel was subject to the primary and paramount lien in favor of Dew by virtue of G.S. § 42-15. Moore v. Faison, 97 N.C. 322, 2 S.E. 169; Belcher v. Grimsley, 88 N.C. 88. As stated by Smith, C. J., in Montague v. Mial, 89 N.C. 137; "The land and the crops to be grown cannot be freed from the conditions imposed by law, nor can the lessor's rights be abridged by any subordinate contracts of the lessee." A person who deals with a tenant is charged with notice of the landlord's rights under G.S. § 42-15. Hall v. Odom, supra.

Appellant directs attention to this provision of the Dew-McKeel contract: "* * * it was expressly understood that Hugh McKeel was to furnish all `labor'; the cost of grading tobacco, housing and harvesting, except the cost of picking cotton was to be divided between them." This provision, appellant contends, obligated Dew to pay one-half of the cost of grading, housing and harvesting the tobacco. Such a construction would seem at variance with plaintiff's theory of the case. Moreover, nothing is alleged or in the agreed facts to indicate the value of plaintiff's services in grading, housing and harvesting the tobacco. While the use of a semicolon rather than a comma after the word "labor" was inept, consideration of the pleadings and of the facts agreed impel us to construe the quoted stipulation to mean that McKeel was to furnish all labor except that the cost of picking cotton was to be equally divided between. Dew and McKeel. Nothing is alleged or in the agreed facts to indicate that plaintiff picked cotton or, if so, the value of such services.

The parties, in the agreed facts, expressly recognize that the Dew-McKeel contract created the relationship of landlord and tenant.

It is noted that McCoy v. Wood, supra, and Warren v. Woodard, 70 N.C. 382, cited by appellant, were decided prior to statutory amendments now incorporated in G.S. § 42-15.

It is further noted that the agreed facts refer to a separate case entitled: "Charlie Sumerlin v. Grace Bishop Dew, Executrix of the Estate of R. P. Dew, deceased." However, the process, pleadings and judgment in the record on this appeal relate solely to the Eason case.

Under the facts agreed, McKeel is indebted to plaintiff. If a judgment against McKeel would be uncollectible, plaintiff's partial loss is unfortunate and regrettable. Even so, under existing statutory law as construed by this Court, plaintiff has no basis on which he can recover from defendant the amount of McKeel's debt to him.

Affirmed.

JOHNSON, J., not sitting.