Appeal
from Superior Court, Union County; Clement, Judge.
Action
by Ethel Collins and husband against Gordon Bass and others.
Judgment for plaintiffs, and named defendant appeals.
Affirmed.
Action
brought by plaintiffs against the defendant to recover a
certain tract of land. The court below found as facts and
rendered judgment as follows:
"The
defendant, Gordon Bass, rented said lands for the year
1929, in the Fall of 1928, from J. N. Davis (mortgagor) the
holder of the legal title, and had begun a crop upon said
lands at the time of the foreclosure of the mortgage deed.
The Court being of the opinion that the plaintiff, as a
matter of law, was entitled to recover, declined to submit
any issues to the jury, but signed judgment, said judgment
being as follows:
"The
above entitled action coming on to be heard before the
undersigned Judge, and the jury having been empanelled to
try the issues joined between the plaintiffs and the
defendants and the Court, after hearing the pleadings read
and the defendants admitting that J. N. Davis and wife
executed a mortgage deed to Bettie J. Collins on the 17th
day of December, 1927, and that the same was registered on
the same day in Book AV, at page 138, in the office of the
Register of Deeds of Union County, North Carolina, covering
the lands in controversy, and that a note was secured by
the mortgage, maturing on the 19th day of December, 1927
and that thereafter, to-wit, on the 30th day of March
1929, the said Bettie J. Collins, Mortgagee, foreclosed
said mortgage and sold the same at public auction on said
date and that Ethel Collins became the last and highest
bidder for said lands and that deed was made to her on the
10th day of April, 1929, and registered on the same day in
Book 69, at page 248.
"And
it further appearing to the Court that the defendants agreed
that the date of mortgage
as above set forth and the date of the date of the
foreclosure proceeding as is herein stated, and also the date
of the note secured by said mortgage, had matured, and it
further appearing to the Court that the defendant Gordon
Bass, claims to have rented said lands in the Fall of the
year 1928, and while said mortgage appeared there of record,
and the Court being of the opinion that as a matter of law
the plaintiffs are entitled to the relief sought in said
complaint, it is now, therefore, ordered, adjudged and
decreed that the plaintiffs are the owners of, and entitled
to the immediate possession of the lands described in the
complaint, and that a writ of ejectment issue ejecting the
defendant, Gordon Bass, from the land and placing the
plaintiffs in possession of said lands and also that the
plaintiffs recover of the defendant, Gordon Bass, the costs
of this action.
"And
it further appearing to the Court that the defendant, J. N.
Davis, having disclaimed any interest in the matters involved
in this action, as shown by his answer filed, he is permitted
to go without day and recover of the plaintiffs any costs he
may have expended."
The
defendant excepted, assigned error, and appealed to the
Supreme Court.
CLARKSON
J.
The
question involved: Is the purchaser at a foreclosure sale
under a mortgage entitled to recover possession of the
property from a lessee or tenant of mortgagor, claiming to
hold under a lease made after maturity of the mortgage
indebtedness? We think so.
In
Jones v. Hill, 64 N.C. 199, 200, citing numerous
authorities, the law is thus stated: "If a mortgagor
remains in possession after the forfeiture of the property,
he remains only by permission of the mortgagee. In such case
the mortgagor has been sometimes called a tenant at will or
sufferance, and sometimes a trespasser; but he is properly
neither; his position cannot be more accurately defined than
by calling him a mortgagor in possession, but he may be
ejected at anytime by the mortgagee, without notice. ***
There is no injustice in this, because the land, including
all its products, is a security for the mortgage debt, and to
that extent, the property of the mortgagee. The mortgagor has
no right to make a lease, to the prejudice of the mortgagee;
the lease is void if the mortgagee elects to hold it so. ***
If the mortgagor could lease, he might altogether defeat the
claim of the mortgagee." Keathly v. Branch, 84
N.C. 202; Brewer v. Chappell, 101 N.C. 251, 7 S.E.
670; Killebrew v. Hines, 104 N.C. 182, 10 S.E. 159,
251, 17 Am. St. Rep. 672; Cooper v. Kimball, 123
N.C. 120, 31 S.E. 346; Montague v. Thorpe, 196 N.C.
163, 144 S.E. 691.
Where
the mortgagee has not entered, or where the crops are severed
before entry, he has no right to them. Killebrew's Case,
supra.
In
Killebrew v. Hines, supra, at page 193, of 104 N.
C., 10 S.E. 159, 162, 251, 17 Am. St. Rep. 672, we find:
"The cases of Brewer v. Chappell and Coor v.
Smith, supra [101 N.C. 161, 7 S.E. 669], in so far as
they are inconsistent with the principles declared in this
opinion, are overruled."
The
following principle is now well settled in this jurisdiction
(19 R. C. L. part § 444, p. 628): "It is generally held
that if the sale is completed and title is vested in the
purchaser while a crop is still unsevered and growing, and
there has been no reservation or waiver of the right to the
crop, the title and right to same will pass to the purchaser
with the land. And this is true as against the mortgagor, as
against his execution creditors, and as against a tenant or
lessee holding under him by a lease subsequent to the
mortgage."
In
Hayes v. Wrenn, 167 N.C. at page 230, 83 S.E. 356
357, we find the following: "Under the common
law--'the tenant for life, or his representative, shall
not be prejudiced by any sudden determination of his estate,
because such a determination is contingent and uncertain.
Therefore, if a tenant for his own life sows the lands, and
dies before harvest, his executor shall have theemblements or
profits of the crop, for the estate was determined by the act
of God, and it is a maxim in the law that "actus dei
nemini facit injuriam." The representatives, therefore,
of the tenant for life shall have the emblements to
compensate for the labor and expense for tilling, manuring,
and sowing the lands, and also for the encouragement of
husbandry, which being a public benefit, tending to the
increase and plenty of provisions ought to have the utmost
security and privilege the law can give it.' 2 Bl. Com.
122; Taylor on L. & T., 355; Gee v. Young, [1 Hay.] 2 N.
C. 17; Poindexter v. Blackburn, 36 N.C. 286." The
common law being in force in this jurisdiction, and the
representatives of the life tenant upon his uncertain tenure
from death being entitled to the emblements, C. S. § 2347
(Revisal, § 1990) was passed. This was done to protect the
right of the remainderman and to secure for him his rent for
the part of the year which had not elapsed at the...
