16 S.E. 10 | N.C. | 1892
The plaintiffs offered in evidence a chattel mortgage, executed to them by one Ira N. Purkerson, which *102 had been proven before the clerk of the Superior Court of Franklin County, and to which his certificate, attested by seal, had been affixed in proper form. The defendant excepted to the ruling of the court that the mortgage was competent, on the ground that in the registry of it in Granville County the seal of the clerk was not recorded.
In Freeman v. Hatley,
The Court say further, in substance, that where the certificate and fiat were made by a judge of the Supreme Court, not the Superior (164) Court, there is no secondary evidence of it if lost, but in that event the maxim omnia presumunter rite acta comes to the aid of the clerk's indorsement. The Code, sec. 1245, is, in so far as it bears upon our case, in the same language as chapter 37, section 1, Rev. Code, construed by the court in Freeman v. Hatley, while another statute (The Code, 112 [3]) requires the clerks of the Superior courts to record in their general order books copies of all fiats made by them. This construction of the statutes finds support in other adjudications of this Court. Love v. Harbin,
The case of Williams v. Griffin,
The mortgage provided that "if by 15 October, 1888, the aforesaid indebtedness has not been discharged by the proceeds of the sale of said crops, or otherwise, then the party of the second part is authorized to take possession of said property and sell the same, or so much thereof as will satisfy the amount then due and all costs and expenses in any way incurred by said seizure and sale. But if said indebtedness shall be paid off and discharged by 15 October, 1888, then this conveyance to be null and void."
The plaintiffs advanced to Purkerson the sum of thirty dollars at the time of the execution of the deed, and subsequently, from time to time, twenty dollars in addition, which sum it is admitted is now due under the contract entered into by him by virtue of the mortgage. But the defendant contends that in fixing 15 October as the earliest time at which a seizure could be made, the parties evinced a purpose that the mortgagor should sell the crop and pay out the proceeds, and that the defendant was safe in assuming, after the failure of plaintiffs to seize before November, 1888, that the mortgagor was selling to him under the privilege given in the mortgage for the purpose of applying the proceeds to the payment of the debt.
We think the contention of defendant is utterly untenable. We know no principle upon which a mortgagee can be fairly deemed to have waived and surrendered his lien upon a crop by a failure to enforce it by seizure for thirty days after his debt becomes due and his lien enforcible; nor can we concur in the very liberal construction of the terms of the contract, which would have left the mortgagor at liberty to sell all crops maturing before 15 October, 1888, and appropriate the proceeds of sale to his own use. In the absence of any agreement as to the time for enforcing a crop lien as between landlord and tenant, it is proper that a crop should be divided as soon as it (166) can reasonably be done after any portion of it is gathered without awaiting the gathering of the whole (Smith v. Tindall,
AFFIRMED.
Cited: Long v. Crews,