Cooper v. Kimball

• Decision Date: 18 October 1898
• Citation: 31 S.E. 346,123 N.C. 120
• Parties: COOPER v. KIMBALL.
• Court: North Carolina Supreme Court

31 S.E. 346

123 N.C. 120

COOPER v. KIMBALL.

Supreme Court of North Carolina

October 18, 1898

Appeal from superior court, Vance county; Bryan, Judge.

Action by D. Y. Cooper against D. B. Kimball to recover crops on lands purchased at a foreclosure sale, and which defendant had taken under a mortgage of the crop. There was a judgment for plaintiff, and defendant appeals. No error.

An agreement, after default, between the mortgagor and mortgagee, by which the former remains in possession as tenant, gives the mortgagee a landlord's lien on the crop, superior to an unrecorded mortgage thereon.

T. T Hicks, for appellant.

A. C Zollicoffer and T. M. Pittman, for appellee.

CLARK J.

The land was sold on July 12, 1897, under the deed of trust. The purchaser immediately, during the preparation of the deed entertained negotiations with the mortgagor, giving him the option to buy back the property or pay rent,--his decision to be made in 10 days,--and he continued in possession in consequence. The trustee's deed to the purchaser was filed for registration the same day, and a few moments thereafter the defendant filed in the same office a mortgage on the crop, which had been executed on the 31st of March 1897. This is not expressed to be for advances to be made and besides it was not recorded within 30 days after its execution, and therefore has no rights as an agricultural lien by virtue of the Code, § 1799, and its amendment (Acts 1889, c. 476); and Killebrew v. Hines, 104 N.C. 182, 10 S.E. 159, 251, has no application. It is simply a mortgage, which had no effect as to third parties till its registration; and at that time the land, with the growing crop thereon, had already passed, by the filing of the trustee's deed to the plaintiff. Jones v. Hill, 64 N.C. 198, cited in 104 N. C., at page 195, and 10 S. E., at page 161. The sale and conveyance to the purchaser were a most effective assertion of ownership and possession as against third parties, and the mortgagor so recognized it, also, as against himself, by treating with the purchaser for the renting or purchase of the property, and remaining in possession under an option given him by the purchaser. Indeed, there being no agricultural lien or recorded mortgage on the crop, even if there had been no sale and conveyance to the purchaser, an agreement, after default, between the mortgagor and the mortgagee, that the former was to remain in possession...