Forehand v. Edenton Farmers' Co.

• Decision Date: 11 July 1934
• Docket Number: 149.
• Citation: 175 S.E. 183,206 N.C. 827
• Parties: FOREHAND v. EDENTON FARMERS' CO.
• Court: North Carolina Supreme Court

175 S.E. 183

206 N.C. 827

FOREHAND v. EDENTON FARMERS' CO.

No. 149.

Supreme Court of North Carolina

July 11, 1934

Appeal from Superior Court, Hartford County; Moore, Special Judge.

Action by Cecil M. Forehand against Edenton Farmers' Company. From a judgment for plaintiff, defendant appeals.

Reversed.

Where landlord rented farm with mules under lease requiring tenant to return personal property or equivalent in kind and five mules died or were disposed of and tenant placed six new mules on farm, but it was not shown he did so as agent or on behalf of landlord or to replace the five mules, landlord had no title to five of the six new mules and could not maintain action for proceeds of sale under mortgage.

This is a controversy without action. The agreed facts pertinent to a decision of the case are as follows: The plaintiff, Cecil M Forehand, owned a farm in Northampton county known as the Princeton farm. On January 1, 1923, said owner leased the farm to A. M. Forehand, and also certain personal property including eleven mules, which were then on the farm and apparently used in its cultivation. The written lease provided that:

(1) "It is understood and agreed between the parties that the personal property listed in the inventory hereto attached and made a part hereof is included in the said lease and that upon the termination of said lease A. M. Forehand is to return the said personal property in as good condition as it now is, or its equivalent in kind," etc.

(2) On August 1, 1931, A. M. Forehand was indebted to the defendant and on said date executed a note and chattel mortgage to said defendant to secure said indebtedness, conveying, among other articles of personal property, "fifteen mules and one mare, all now in my possession." This mortgage was duly recorded in Northampton county on November 5, 1931, and in Chowan county where the mortgagor resided on November 9 1933. "The said A. M. Forehand at the time of the execution of said mortgage, was in possession of more than fifteen mules, including mules in his possession on his farms in Chowan County but had in his possession only thirteen mules on the Princeton farm and none elsewhere in Northampton County, but had had fifteen mules on the Princeton farm shortly before, two having died."

(3) The aforesaid rental agreement was terminated at the end of the year 1933, and at this time there were twelve mules and one mare left on the Princeton farm. "Six of these mules and the farming implements which were originally the property of the plaintiff and included in the inventory above referred to were taken back by the plaintiff. The other six mules * * * were not included in the inventory, having been acquired and placed on the farm by A. M. Forehand since the execution of the rental agreement, and were taken and sold by the defendant under its mortgage. All mules placed on the farm by A. M. Forehand were used for the same purpose as the mules included in the original inventory."

(4) It was agreed by the defendant and the plaintiff that plaintiff would not object to the sale of the five mules in controversy, but he claims the proceeds of the sale received by the defendant from the sale of said five mules, amounting to $308.

Upon the foregoing agreed facts the court was of the opinion "that the plaintiff, Cecil M. Forehand, is entitled to recover of defendant, Edenton Farmers Company, the proceeds of the sale of the five mules in controversy, said proceeds amounting to the sum of $308.00."

From the judgment so rendered the defendant appealed.

W. D Pruden, of Edenton, for appellant.

D. C. Barnes, of Murfreesboro, and W. D. Boone, of Winton, for appellee.

BROGDEN Justice.

The case is this: A man owns a farm and eleven mules. He leases the farm and the mules. The lease provides that upon its termination the lessee "is to return the said personal property...