Opinion
September Term, 1890.
Landlord and Tenant — Lien for Advancements — Lien for Supplies — Priority of Landlord's Lien.
In an action by a landlord for the value of rents and advancements made to his tenants against the tenant's vendee of the crops, who had also made supplies to him for cultivating them, it appeared from the findings of the referee that the plaintiff advanced certain cotton seed, etc., to his tenant in 1884, and in 1885 and 1886 allowed his tenant to retain parts of the undivided cotton seed and crops by way of advancement: Held, (1) that plaintiff had a landlord's lien on such seed and crops; (2) that it took priority over defendant's supply lien; (3) that division of the crop and delivery back to the tenant was not necessary to constitute a valid advancement.
ACTION to recover a balance alleged to be due to the plaintiff for rent and advancements to one James Hardy, from whom, it is alleged, the defendants purchased and received property subject to a statutory lien to secure the payment of said rent and advances, heard, upon the report of a referee and exceptions thereto, before Womack, J., at Spring Term, 1890, of EDGECOMBE.
No counsel for plaintiff.
G. M. Fountain (by brief) for defendant. (44)
Exceptions to the findings of fact are sent up with the record, but as they present no questions subject to the review of this Court, we take no notice of them.
1. By section 1754 of The Code, when lands shall be rented or leased for agricultural purposes, unless otherwise agreed between the parties thereto, any crops raised on said lands "shall be deemed and held to be vested in possession of the lessor or his assigns at all times until the rents for said land shall be paid," etc. The lien thus provided for shall be preferred to all other liens, and no part of the crops can be removed before its satisfaction, either by the lessee or his assigns, without the consent of the lessor or his assigns. It is insisted for the defendants that the advancements, according to the facts found, were for 1884, and not for 1886, and constituted no lien upon the crops of that year because, from the findings of fact, Hardy rented the plaintiff's land for the years 1885 and 1886 on the same terms as for the year 1884, and at the end of the years 1884 and 1885, all the cotton seed, corn and fodder being in bulk and undivided, the plaintiff settled her rent with hardy, without having any particular part of the cotton seed, corn and fodder set apart to herself to satisfy the advances, and not having the cotton seed, corn and fodder in actual possession to advance to Hardy for another year upon the terms agreed, the alleged lien upon the crops of 1886 was for a preexisting debt. We understand this to be the contention of the defendant's counsel. It is true the crop was in the possession of the plaintiff only by virtue of the statute, but the cotton seed, corn and fodder, though not divided and set apart from the bulk (45) of the crop, were all deemed to be vested in possession of the plaintiff, and what was due to her being known in quantity and value, what necessity was there for measuring off so many bushels of cotton seed and corn, in order to give effect to an agreement or contract of renting for the following year? Cui bono all that trouble? The contracts or agreements for 1885 and 1886, upon the facts found, were new and independent contracts or agreements, and there being enough cotton seed, corn and fodder belonging to the plaintiff on her farm to pay for the advancements made, Hardy needing them to aid him in making a crop for the following year on said farm, it was competent for her to agree that he should have them for that purpose, and for Hardy to agree to take them for advancements, and that is a fair construction of the contract, as found by the referee. That the cotton seed were to be returned in kind, or the value paid in money, made them none the less an advancement.
Did the plaintiff lose her lien because she did not have the cotton seed, corn and fodder divided and set apart, take actual possession and make actual delivery to Hardy, as contended? The legal title to the crop and its possession were vested in her. Hardy's possession was her possession. He could neither dispose of it to another, nor keep and use it himself, without her consent, until he had discharged the lien, and when she consented and agreed that he might have it to aid him in making another crop on the land, by virtue of that agreement, the lien attached to the crop so to be made, as would any other advancement.
But the defendant's counsel says: "It cannot be said that Hardy agreed to receive it as an advancement, for the referee does not find this to be a fact; and, indeed, he could not so find, for there is no evidence that he ever did anything of the kind, but he positively refused to receive it as such." We think this is a misapprehension of the (46) finding of the referee. While he does not find, in so many words, that Hardy agreed to receive the cotton seed, corn and fodder as an advancement, he does not find that Hardy refused to receive them as such; and while the findings of fact are not for our review, inasmuch as Hardy could not have removed, disposed of, or used the crop on which the plaintiff had a lien without first satisfying the lien or without her consent, and as he did use the cotton seed, corn and fodder, he must have done so with her consent and the lien attached, or he would have subjected himself to an indictment, and we think the fair construction of the referee's findings is that they were advancements, and the defendant's first exception cannot be sustained.
2. We are unable to see any ground upon which the second exception can be maintained. The referee finds as a fact that 737 pounds of lint cotton on the rent of 1886 were unpaid, and they were certainly due.
3. The third exception is to the ruling that the defendant is liable to the plaintiff for the indebtedness of Hardy. Every person who makes advancements to a tenant or cropper of another does so with notice of the rights of the landlord, and that any lien that he may have on the tenant's crop is preferred to all others, and the risk is his if the tenant does not satisfy the preferred lien by complying with the contract and all stipulations in regard thereto. Thigpen v. Leigh, 93 N.C. 47.
The defendant having received of Hardy and appropriated to his own use more than enough of the crop upon which the plaintiff had a lien to pay the debt, he became liable therefor, and the third exception cannot be sustained.
4. If the defendant was liable to the plaintiff to the amount (47) of the indebtedness of the tenant Hardy to the plaintiff, it necessarily follows that the plaintiff was entitled to judgment therefor, and the fourth exception cannot be sustained.
There is no error, and the judgment of the court below must be
Affirmed.
Cited: Ballard v. Johnson, 114 N.C. 144; House v. Watson, 148 N.C. 298.