Credle v. . Ayers , 126 N.C. 11 ( 1900 )

The vendee having defaulted in payment of the first installment to the purchase-money, due November, 1894, the vendors (and their mortgagee Makely, who had joined in the contract of sale) brought an action of ejectment in December, 1894, at the end of thirty days thereafter under the terms of the contract. The plaintiffs could have brought their action either (1) for possession of the land, (2) for sale and foreclosure, or (3)in personam for judgment for the debt, or for all three. They elected to take the first and have sued for possession and damages for withholding.Allen v. Taylor, 96 N.C. 37; Silvey v. Axley, 118 N.C. 959.

The defendant contends that he is not liable for mesne profits and relies upon Killebrew v. Hines, 104 N.C. 182; Carr v. Dail, 114 N.C. 284, and Hinton v. Walston, 115 N.C. 7. Those cases hold that a vendee or mortgagor, before or after breach, who is permitted to retain possession, is entitled to the rents and profits (unless there (15) is an express stipulation in the contract or mortgage to the contrary, as in Egerton v. Crinkley, 113 N.C. 444; Jones v. Jones, 117 N.C. 254); but here the withholding by the defendant, after action brought in December, 1894, was wrongful, and he became liable, like any other defendant in ejectment, for the mesne profits. For what other purpose than to secure such mesne profits is the defense bond required under the Code, sec. 237? Had the bond not been given, or not raised to $5,000, as required by the court (Rollins v. Henry, 77 N.C. 467), the plaintiffs would have had possession by default, Code, sec. 390, Norton v. McLaurin, 125 N.C. 185, and cases cited; or if the defendant had been allowed to defend without bond, by reason of poverty, a receiver would have been appointed to secure the rents and profits. Horton v. White, 84 N.C. 297. This case differs from Leach v. Curtin, 123 N.C. 25, in that possession is here sued for and demanded in the complaint.

The defendant surrendered possession to Makely in May, 1896. That did not release the defendant's liability for rents and profits for 1895, during the wrongful withholding, unless there had been a stipulation to that effect. Otherwise, any tenant in possession could wrongfully withhold possession of land after action brought, and enjoy the rents and profits till forced to trial, and then release himself and bond from liability for mesne profits by abandoning possession. In such case the plaintiffs take judgment for the mesne profits till they get possession and for the title, but not for the possession. Woodley v. Hassell, 94 N.C. 157; Clark's Code, (3 Ed.), sec. 384.

Under the former practice in actions of ejectment, damages were recoverable only up to the time action was begun, but under (16) the present system they are recoverable up to the trial. Pearsonv. Carr., 97 N.C. 194; Arrington v. Arrington, 114 N.C. at p. 120; 10 A. E. Enc. (1 Ed.), 537; Sutherland Damages, sec. 848. Here, up to surrender of premises, and by agreement in the order of reference, these are restricted to the rents and profits for the year 1895.

The mortgagee, Makely, foreclosed and bought the premises in May, 1896. That could have no effect upon the liability of the defendant for mesne profits during his wrongful withholding. This being "fruit fallen" by the defendant's own authorities, Killebrew v. Hines, and others above cited, would go to the plaintiffs Credle and Wahab, and not to their coplaintiff and mortgagee, Makely. But the defendant is relieved from difficulty, as Makely is a coplaintiff assenting to the recovery of judgment by Credle and Wahab, and, besides, his express agreement releasing such mesne profits to them is in the record.

The referee finds as a fact that the defendant by his negligence and want of good husbandry materially lessened the productiveness of the land and exposed the crop to the depredation of hogs and cattle. He correctly held as a matter of law that the measure of damages was the actual rental value of the land, and not what the defendant actually gathered from the land. The language of the defense bond required by the Code, sec. 237, is for payment of costs and damages for loss of rents and profits. The object is to put the plaintiffs, when wrongfully kept out of possession, in statuquo by giving as compensation the rental value that could have been had if the possession of the premises had not been withheld. 10 A. E. Enc. (1 Ed.), 542 (c).

The defendant further excepted because the referee failed to (17) pass upon certain objections to evidence, and that the judge, instead of referring the case, found those facts himself. This was admissible. Wallace v. Douglass, 103 N.C. 19; Brackett v. Gilliam,125 N.C. 380. And the defendant has had benefit of those exceptions in his exceptions to the rulings of the judge. Nor was there error in the referee rejecting evidence as to rental value of adjoining farms, as that would have raised collateral issues. Warren v. Makely, 85 N.C. 12; Brunerv. Threadgill, 88 N.C. 361; Hinton v. Pritchard, 98 N.C. 355.

Affirmed.

Cited: Woodlief v. Wester, 136 N.C. 165.

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