76 S.E. 234 | N.C. | 1912
This action was commenced against the defendant, Ang. Ray, to recover a crop made in 1911, and Allen Co. were permitted to interplead.
On 25 March, 1911, the defendant Ray executed to the interpleaders a chattel mortgage to secure $154.89, in which the words descriptive of the crop conveyed were as follows: "My entire crop of cotton, cotton seed, corn, dry feed and peas, which I may raise or cause to be raised during year 1911 on my own land and J. C. Currie's land, this being in the neighborhood of T. S. Leak, Hamp Baldwin, and others, and on or about on a road running from Malcolm Blue's to McLeod's mill, this being where I now live or near where I now live, in Rock Springs Township, N.C. all of which is now in my possession and upon which there is no encumbrance."
On 30 April, 1911, the said Ray executed to the plaintiffs a chattel mortgage to secure $392.29, due 1 November, 1911, in which the words descriptive of the crop conveyed were as follows: "My entire crop, such as corn and cotton, cotton seed and feed of all descriptions, to be raised on my land (or any other lands) that I may tend. Twenty-five acres of land, joining Hamp Baldwin and Jim Bennette, bought from J. C. Currie, the land where I now live, my house and premises, is on the land."
The mortgage to the plaintiffs was registered on 29 April, 1911, and the one to the interpleaders on 23 November, 1911.
It appears from the evidence that in 1910 the defendant was let into possession by one J. C. Currie of a large tract of land containing about 761 acres owned by said Currie, of which a 50-acre tract, called the Wilson tract, was a part; that the crop in dispute was raised on a part of this Wilson tract and on a part of the large tract adjoining the Wilson tract; that the defendant resided on the part called the Wilson tract; that at the time the defendant was let into possession, the defendant and J. C. Currie entered into a parol agreement that the defendant could select 12 acres of land from the Wilson 50-acre tract and call for deed for same from said Currie; that defendant built on said Wilson tract a dwelling-house and some outhouses, and also (378) raised a crop in 1910 and 1911 on the said lands, a part being on the Wilson tract and a part on the adjoining land; that at the time the defendant mortgaged the crops to the plaintiffs no land had been selected by the defendant, no land set apart or deeded to him; that after the seizure of the crop by the plaintiff and after the institution of this action, the defendant selected 12 acres of land of the Wilson tract, *308 mostly in the woods, adjoining the lands on which the crops in dispute were grown, practically leaving out all the land he had tended and on which most of the crops in dispute were grown, and obtained a deed for the land so selected.
W. L. Hurley testified: "I know the lands on which the crops were grown that were conveyed in this mortgage. I went over the lands before the mortgage was given, with the defendant. The lands that Ray cultivated lay right where his house is; joins Baldwin and Jim Bennett. Ray did not cultivate any other lands that year, that I know of. I don't know exactly how many acres there were. I seized the crops on Ray's land, that he claimed."
Randall Hurley testified: "I know the lands described in the mortgage; 25 acres; that is where he lives, where his house is. I have been over the lands and they are the lands described in the mortgage."
The defendant Ray, among other things, testified: "I did not raise any crop this year on any other land not described in the mortgage to W. L. Hurley Sons."
There was other evidence tending to prove that the land cultivated in 1911 adjoined Bennett and Baldwin.
His Honor held that under the description in the mortgage to the plaintiffs they were entitled to recover the crops raised on the 12 acres of land deeded to the defendant Ray, and that they could not recover the crops raised on the other land, and plaintiffs excepted and appealed from the judgment rendered.
(379) The authorities fully sustain the position that to constitute a valid mortgage upon a crop there must be some designation of the land upon which the crop is to be cultivated (Atkinsonv. Graves,
It has also been held that the crop cultivated next after the execution of the mortgage may be conveyed, and no other (Wooten v. Hill,
We see no substantial difference between the language, "any other crops he may cultivate," and that of "any other crop he may tend," and if the description in the mortgage to the plaintiffs stopped here, we would follow the ruling of his Honor, but there are other and apt words of description, to wit, "25 acres joining Hamp Baldwin and Jim Bennett," which will not necessarily fail because of the statement that it was the land of the mortgagor or land bought from J. C. Currie.
In Proctor v. Pool,
Applying this principle, we are of opinion there was evidence which entitled the plaintiffs to have their cause submitted to the jury, upon the question of the ownership by them of the crops raised on other land than the 12 acres set apart to the defendant Ray, and that they are the owners if the jury shall find that the crops were grown on land adjoining Baldwin and Bennett, and that it was the intention of the parties to convey these to the plaintiffs.
The crop in controversy is that of 1911. The defendant Ray entered into possession of the land under a parol agreement with the owner to sell him 12 acres of a larger tract, not designated or described, and to be selected thereafter, and the evidence of the plaintiffs tends to prove that he cultivated more than 12 acres in one lot of land, adjoining (381) the lands of Hamp Baldwin and Jim Bennett, and that the 12 acres were not set apart until after the crops were seized in this action. As the contract with the owner was in parol, Ray did not own any land, nor had he bought any from the owner, as none had been set apart or selected, and his house and premises were on all the land cultivated by him, as well as on the 12 acres afterwards allotted.
It follows, therefore, that there was error, and a new trial is ordered.
New trial.