Ford v. . Green , 121 N.C. 70 ( 1897 )

This is an action originally brought before a justice of the peace to recover possession, by virtue of an agricultural lien, of certain crops raised during the year 1896 by the defendant Green on lands alleged by the plaintiff to have then belonged to said Green. The defendant, the Ballard Company, intervened and claimed title to the crops as the landlord of the defendant Green. The plaintiff introduced his lien, dated 22 January, 1896, and filed for record 24 January, 1896. The intervenor introduced his landlord's lien, dated 26 February, 1896, and filed for registration 25 May, 1896.

B. W. Ballard, on behalf of the Ballard Company, testified that the company "was the assignee and owner of a mortgage on said land, which mortgage was duly executed by Israel Green and wife. This was expressly admitted. It was also admitted that the debt secured (71) by the mortgage was unpaid. Ballard further testified that in 1893 the defendant Green, finding he could not pay the mortgage, agreed to become the tenant of the Ballard Company, surrendered the possession and remained on the land as such, paying an annual rental of $100; that at the same time said company agreed with Green that if he would, within one year, pay the company $1,000, which was less than the mortgage debt, then the company would cancel the mortgage and all claim on the land; that defendant Green, under this contract, had remained on the land since 1892, recognizing the Ballard Company as his landlord and paying $100 a year rent, and that each year the company had renewed its proposition to surrender all claims on the land on payment of the $1,000, and that every year since the above agreement, in 1893, the company had taken a crop lien for the said rent and advances."

It appears that Green still owes the plaintiff $48.95 on the debt secured by the crop lien, which it was admitted covered the crops in controversy. It was admitted that the value of the crops sought to be recovered was not over $50, and that Israel Green had an absolute deed to the land on which the crops were raised, and lived on the land. He corroborated B. W. Ballard as to the said agreement, and the plaintiff admitted the facts testified to, and also admitted that the Ballard Company had not been paid in full for advances made during 1896 to Green, and admitted that if the lien of the company had priority over his lien, then judgment should be entered for the company. Upon the whole evidence the court held that the company was the landlord of Green and that its lien had priority over the lien of the plaintiff, and rendered the judgment set out in the record, to which the plaintiff excepted and appealed.

We see no error in the ruling. Admitting that the agreement (72) testified to by Ballard did not change the relations of mortgagor and mortgagee existing between the Ballard Company and Green, and that the right of redemption still remained in Green, the possession of the land was changed by the entry of the company and the attornment of Green. The Ballard Company was thereafter, in any view of the case, at least the mortgagee in possession, and therefore entitled to the rents and profits. That it rented the land to a tenant who happened to be the mortgagor did not change the character of that tenant's possession, which was thereafter that of his landlord. The entry of the mortgagee, being matter in pais, was incapable of registration. The agreement to rent might have been registered, but did not require registration, as it was only for one year, and renewed from year to year. As the mortgage held by the Ballard Company was "expressly admitted," it is to be presumed that all its necessary incidents, such as registration and default, were also admitted, as they are nowhere denied. This mortgage, being registered, was notice to the world, not only of its existence, but necessarily of all that it contained. Any one examining the record — and examination is presumed from the opportunity — would be fixed with notice that the mortgage was in default and that the consequent right of entry had accrued to the mortgagee. The actual entry of the mortgagee was not during the current year while the crops in question were growing, but was more than two years before they were planted or any of the supplies furnished therefor. This takes the case at bar clearly out of the rule laid down in Killebrew v. Hines, 104 N.C. 182, so strongly relied on by the plaintiff. That case, while maintaining the just principle that a mortgagee cannot enter and take possession of growing crops to the prejudice of preexisting mortgagees or lienees, clearly recognizes the right of the mortgagee to enter upon condition broken, and this right is sustained by every authority cited therein. The concurring opinion of Justice Merrimon, reconciling Killebrew v. Hines with the earlier (73) cases, is worthy of attention. The later cases of Taylor v. Taylor, 112 N.C. 27; Crinkley v. Egerton, 113 N.C. 444, and Jones v.Jones, 117 N.C. 254, do not affect the principle now under consideration. Can there be any question of a mortgagee's right of entry upon breach of condition? He had it at common law. 1 Pingrey on Mortgages, sec. 886. He has it now in all States where the legal title is held to vest in the mortgagee. Ib., sec. 826; 2 Jones Mortgage, sec. 1253; Killebrew v. Hines,supra, and cases therein cited.

In Jones v. Jones, supra, this Court has expressly held that, after forfeiture, the mortgagee or vendor can by contract become landlord of the mortgagor or vendee, so as to avail himself of the landlord's lien.

We are unable to distinguish the Jones case from the case at bar, as the attornment so unequivocally approved in the former case was in the latter case made when there were no conflicting liens, and all subsequent lienees are charged with knowledge of the mortgagee's right of entry.

This view of the case renders it unnecessary for us to consider when and under what circumstances a mortgagor can abandon or release his equity of redemption. It should be borne in mind that this opinion does not deal with any question of actual fraud or fraud in fact, as the case comes to us on a bare question of law. No error appearing in the record, the judgment is affirmed.

Affirmed.