Taylor v. . Hodges

Feb 5, 1890
Reporters:
,
Before:
Avery
Avery, J.

after stating the facts: There was no question raised as the identification of the land 1o which description in the mortgage pointed, and.we assume that the description was made certain by showing where all the lands owned and cultivated by the defendant in Averasboro Township, Harnett County, North Carolina, were located. Blow v. *348 Vaughan, decided at this term. On the 30th of April, 1887, the mortgage was executed to secure a note due October 1st, 1887, and for that purpose the defendant conveyed “ all of my entire crop to be made on my lands in Averasboro township,”! &c. The- mortgagor had no power to create a lien on any except the “ crop planted, or about to be planted, in the year next following the exeeution of the conveyance.” Smith v. Coor, 104 N. C., 139; Wooten v. Hill, 98 N. C., 49; State v. Garris, ibid, 733. The'inference is, therefore, unmistakable that the crop of the year 1887 was that referred to and conveyed by the deed, and that construction is supported by the fact, that the note secured was payable on the 1st day of October of that year, when the crop was maturing daily. Woodlief v. Harris, 95 N. C., 211; Rountree v. Britt, 94 N. C., 104. If the description contained in the deed -was fairly susceptible of the interpretation we have given it, the defendant was not injured, and could not justly complain, even if the Judge allowed other incompetent testimony to go to the jury to show what crop was intended b}7 the parties to pass by the mortgage, when he might have instructed them that the deed would create a lien on all the crops planted by the defendant on his land in said township during the year 1887, and no others. Comron v. Standland, 103 N. C, 207. He might, perhaps ought to, have told the jury that the defendant admitted in his answer that he conveyed the crop of 1887, and was bound b}7 that admission.

Where the debtor notifies the creditor that he will not pay a debt due him, the law does not require the latter to go through the vain form of demanding the debt before bringing an action to recover it, and his Honor did not err in pre-senúng that view of the law to the jury.

The jury find that the sum actually due from defendant to plaintiff was $50.37J, while the value of the property conveyed and seized was §223.50. The plaintiff was entitled to *349 the possession of the property for the purpose of selliug to satisfy the debt, if it was not paid, but he had no right to recover the full value of the property from the defendant and the sureties on his bond without qualification or condition, when the jury had ascertained that a smaller sum was due. Justice Reade, in Bitting v. Thaxton, 72 N. C., 541, said: “If there is anything settled in our new system, it is that there is but one form of action. There are torts and contracts just as there used to be, but there are not several forms of action. * * * It is the transaction that is to be investigated without regard to its form or name.” Walsh v. Hall, 66 N. C., 233; Wilson v. Hughes, 94 N. C., 182. The fact is found that only a certain sum remains due and constitutes a lien upon the mortgaged property, and the law cannot be so construed as to permit the recovery of a much larger sum than the debt ascertained to be due. Section 324 of The Code, as amended by ch. 50, Laws of 1*85, prescribes a form of replevin bond peculiarly adapted to those cases where the title to specific personal property (such as horses) is the only question at issue, and the full value of the property is the just alternative allowance as damages, when the property is not delivered But where the action is brought by a mortgagee, who seizes to sell and satisfy the debt, or a counterclaim is setup, the Court has the power to so frame its judgment as to do justice and prevent oppression. Wilson v. Hughes, supra.

The Court should have adjudged that the plaintiff recover the specific property, and, if possession could not be had, then the penal sum named in the bond of the defendant and his sureties, with a proviso that the specific property should be relieved of the lien and liability to seizure and sale, and the defendant and the sureties on his bond discharged from their obligation growing out of its execution, by the payment of $50.57^, the sum actually due, with *350 interest from the beginning of the term at which the verdict was íendered, and costs of the action. The judgment must be modified accordingly.

Modified and affirmed.