First Carolinas Joint Stock Land Bank of Columbia v. Page
| Decision Date | 11 October 1933 |
| Docket Number | 190. |
| Citation | 171 S.E. 68,205 N.C. 248 |
| Parties | FIRST CAROLINAS JOINT STOCK LAND BANK OF COLUMBIA v. PAGE et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Harnett County; Cowper, Special Judge.
Action by the First Carolinas Joint Stock Land Bank of Columbia against J. W. Page and others. From a judgment in favor of plaintiff, defendants appeal.
Error.
Purchaser at foreclosure sale under trust deed containing covenants that, until default, possession be enjoyed by mortgagor who assigned rents and income as security for each year that installments were unpaid, held estopped to claim crops growing on land at time of foreclosure for default after farm was leased by mortgagor's grantee to lessee who paid rent.
Civil action in ejectment and to recover possession of all crops grown upon the Healey farm in Harnett county during the year 1931.
The facts are these:
1. On February 1, 1926, J. V. Healey (unmarried) executed for the benefit of plaintiff a deed of trust on his 969-acre farm in Harnett county. Said deed of trust was prepared in accordance with the Federal Farm Loan Act, 12 USCA c. 7, § 641 et seq., to secure a loan of $35,000, and provided for its payment on the amortization plan with acceleration clause, at the option of the plaintiff, and foreclosure in the event of failure to pay any of the installments falling due June 1 and December 1 of each year during the life of the incumbrance.
2. The following covenants are contained in said deed of trust:
(a) "And It is Further Covenanted, That the said parties of the first part, their heirs, legal representatives or assigns, shall hold and enjoy the said premises until default in the payment of the installments as provided in said note, or a breach of any of the conditions and covenants of this deed of trust shall be made."
(b) "And It Is Further Covenanted, That as a further security for the payment of the note and all installments thereof, and for the performance of all the terms of said note and all the conditions and covenants of this deed of trust that the said parties of the first part hereby assign, set over and transfer to The First Carolinas Joint Stock Land Bank of Columbia, its successors or assigns, all of the rents and income of said premises herein conveyed for each and every year that any installment or installments of the said note may be unpaid, together with all rights and remedies for enforcing collection of the same."
3. On April 2, 1928, Healey conveyed the farm in question to the Carolina Fruit Company, Inc., which assumed the payment of plaintiff's debt, and on January 1, 1931, the fruit company leased the premises to J. W. Page for the calendar year. Page paid the agreed rent of $500 during the month of January and sublet the farm to his codefendants, with the understanding that he should furnish fertilizer, mules farming implements, and receive two-thirds of all crops raised on the land. The sublessees were to cultivate the crops and receive one-third as their share.
4. The taxes for the year 1930, amounting to $435.76, were not paid when they became due and payable, which the mortgagee was at liberty to pay and add to the debt secured by the deed of trust.
5. Default was made in the payment of the installment due June 1, 1931 (the previous installments having been paid), and the trustee, at the instance of the plaintiff, sold the property under the terms of the deed of trust.
6. The plaintiff bid in the land at said sale, and received deed from the trustee August 24, 1931, and instituted the present action in the ensuing month of September. Only the tenant and subtenants are made parties. The Carolina Fruit Company, Inc., is not a party to the action.
From a judgment in favor of plaintiff for the possession of the land and for $3,000, the value of the growing crops...
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