Opinion
(September Term, 1888.)
Mortgagee and Mortgagor — Possession — Crops.
The mortgagee of lands, in the absence of any stipulation to the contrary, is entitled to all the crops which may be produced upon it from year to year until the secured debt is paid, although they are the product of the mortgagor's cultivation under a possession permitted by the mortgagee.
THIS is a civil action, which was tried before Shipp, J., at Spring Term, 1888, of WAYNE Superior Court.
W. R. Allen for plaintiffs.
No counsel for defendant.
The following is so much of the case stated on appeal as need be repeated here:
It was agreed that the crop, the detention of which was the subject of this action, was raised during the year 1887 by the defendant on land bought by him of the plaintiffs on 6 December, 1882, and that the defendant, in payment of said land, on said 6 December, 1882, executed seven promissory notes to the plaintiff, H. A. Coor, by which he promised to pay her thirty-five bales, 500 pounds each, of good middling lint cotton, five bales on 1 November of each year for 1883, 1884, 1885, 1886, 1887, 1888; and to secure the payment of the same executed a mortgage on the lands so conveyed to him by the plaintiff, which mortgage, after conveying land, contained the following: "Also all crops of every kind raised on said land shall be surety for the annual payment of each year, and shall not be removed from said land until the note due that year is paid in full."
It was further admitted that the note for 1887 was due and unpaid when this action was brought, and is still due and unpaid, except three bales of cotton, delivered thereon during the fall of 1882.
The defendant resisted a recovery, on the ground that the mortgage does not vest in the plaintiffs a sufficient interest in the crops to be raised on said lands to enable them to sustain this action of (262) claim and delivery; "and for the further reason," that a valid mortgage cannot be given of crops to be raised, except for those to be raised the year next after the execution of the mortgage.
After hearing the argument, the court, being of the opinion that the plaintiffs were entitled to recover, gave judgment for the plaintiffs, declaring H. A. Coor to be the owner and entitled to the possession of the crops seized, and to apply the same in discharge of the note due 1 November, 1887, and for the cost of this action.
From which judgment the defendant appealed.
The feme plaintiff sold and conveyed the land mentioned to the defendant, taking his promissory notes, coming due at different times, for the purchase money, and at once took from him a mortgage of the land and the crops to be produced thereon from year to year, for the time specified to secure the payment of the notes as they severally came due. The mortgagee, as such, was entitled to the land, and in the absence of agreement to the contrary, to all the crops that might be produced upon it from year to year, until the debts secured by the mortgage should be discharged. The defendant mortgagor remained in possession of the land, not as of right, but by permission of the mortgagee, and the crops produced, including that in question, belonged to the latter for the purposes of the mortgage, although produced by the labor of the former. Jones v. Hill, 64 N.C. 198; Williams v. Bennett, 4 Ired., 122.
The clause of the deed of mortgage expressly conveying the crops to be produced on the lands from year to year was unnecessary, because, without it they belonged to the mortgagee. It did not in any (263) degree abridge her rights. As the crops were hers she could agree with the mortgagor to apply them from time to time as provided in the mortgage.
It is unnecessary to advert here to the nature and extent of the right of the defendant to have compensation for cultivating the crops.
So that the objections urged and relied upon in opposition to the plaintiffs' right to recover, are not applicable to this case, and we need not consider them.
Affirmed.
Cited: Brewer v. Chappell, ante, 253; Killebrew v. Hines, 104 N.C. 188, 193; Hinson v. Smith, 118 N.C. 508; Stevens v. Turlington, 186 N.C. 195.