103 S.E.2d 381 | N.C. | 1958
L. J. PEOPLES, Plaintiff, and New Party Plaintiff: Mrs. Rafaela D. Peoples, Executrix of the Last Will and Testament of L. J. Peoples,
v.
UNITED STATES FIRE INSURANCE COMPANY, a Corporation, and R. O. Pearce.
Supreme Court of North Carolina.
Gaither M. Beam, Louisburg, Ehringhaus & Ellis, Raleigh, for plaintiff appellant.
John F. Matthews, Louisburg, for defendant appellee.
WINBORNE, Chief Justice.
Plaintiff, appellant, in brief filed, without specifying the exception to which any particular question is related, presents argument in respect to four questions:
First: "Should the defendant Pearce's motion upon which the final order herein was based have been denied for the reason that it was not in writing?" In this connection the record discloses (1) that defendant Pearce gave notice to plaintiff that he would at certain time and place apply to judge of Superior Court for an order to pay to him the balance of the fund arising from the hail insurance, and (2) that plaintiff appeared at the time and place for the hearing of the case in its regular order on the calendar at a regular term of court, and participated in the hearing, and agreed that the judge might take the case under advisement and sign judgment at any time thereafter. And the record is silent as to whether the motion was or was not in writing. And it does not appear that any point was made by plaintiff in respect thereto. Under these circumstances the point will be deemed waived and may not now be successfully presented.
Second and Third are these: "Should issues of fact be tried by the judge when trial by jury has not been waived? Does the order herein from which plaintiff appealed find sufficient facts in compliance with provisions of G.S. § 1-185?" In this connection the issues of fact raised by the pleading in this cause relate to matters far afield from the matter affected by the order.
On this record it is not controverted that defendant Pearce secured hail insurance on the tobacco crop grown by him on plaintiff's land, and paid the premium therefor, that the fund ordered paid into the clerk's hands was proceeds for damage to the tobacco crop by reason of hail. It is not contended that plaintiff had anything to do with taking out the insurance or paying for it, or that it was intended to cover plaintiff's interest in the crop. In fact it is made to appear in the record on appeal that plaintiff opposed the idea of insuring the crop when it was suggested by Pearce.
Hence the determinative question on this appeal is one of law, that is: Where tenant procures and pays for policy of insurance against damage to tobacco crop by hailstorm, and the crop is so damaged, nothing else appearing, does the landlord on whose land the crop is growing have statutory crop lien for advancements, G.S. § 42-15, on the fund paid under the policy to cover the hail damage? Decisions of this Court provide negative answer. See Batts v. Sullivan, 182 N.C. 129, 108 S.E. 511, where these headnotes reflect the decision of this Court:
"1. The possession and title to all crops raised by a tenant or cropper in the absence of a contrary agreement, are deemed vested in the landlord until the rent and advancements have been paid.
"2. The interest of the tenant in the undivided crops, and housed in the landlord's barn, is insurable.
"3. Where the undivided crop of the landlord and tenant has been housed in the latter's barn, and while insured by the tenant for his sole benefit has been destroyed by fire, and the insurance company has paid the loss, in the landlord's action the tenant is entitled to the full amount of the loss so paid; and the question as to the validity of *384 the policy and the extent of the landlord's interest in the crop does not arise."
Fourth: "Whether the court erred in signing and entering of the order herein from which plaintiff appealed." In this connection it is provided by statute in this State that "When it is admitted by the pleading or examination of a party that he has in his possession or under his control any money or other thing capable of delivery, which, being the subject of the litigation, is held by him as trustee for another party, or which belongs or is due to another party, the judge may order it deposited in court, or delivered to such party with or without security, subject to further direction of the judge." G.S. § 1-508.
Testing the factual situation in case in hand by this statute, it is apparent that Judge Hobgood had the authority to make the orders in question in respect to the fund derived from the hail insurance on the tobacco crop.
After careful consideration of the matters presented on this appeal error in them is not made to appear.
Affirmed.
