Green v. Rodman

• Citation: 150 N.C. 176,63 S.E. 732
• Parties: GREEN et al. v. RODMAN.
• Decision Date: 24 February 1909
• Court: North Carolina Supreme Court

63 S.E. 732

150 N.C. 176

GREEN et al.

v.RODMAN.

Supreme Court of North Carolina.

Feb. 24, 1909.

1. Mortgages (§ 199^*)—Rights and Liabilities of Parties—Rents and Profits.

A mortgagee in possession of the land is liable for its rents and profits to the mortgagor, and the latter is entitled to have the same credited on the mortgage debt.

[Ed. Note.—For other cases, see Mortgages, Cent. Dig. § 513; Dec. Dig. § 199.*]

2. Mortgages (§ 243*) — Assignment of Mortgage—Rights of Assignee.

Where lessees of the mortgagor purchased the mortgage to protect their interests and con-tinued to hold as lessees only, paying all rents, until they assigned the mortgage as security to one who never took possession, and whose rights as assignee were expressly excepted from the operation of a judgment against the lessees for rents accruing after their assignment of the mortgage, the mortgagor was not entitled to have the rents credited on the mortgage debt as against the assignee who succeeded to all the rights his assignors had at the time of the assignment, and was entitled to foreclose the mortgage for the amount due him.

[Ed. Note.—For other cases, see Mortgages, Cent. Dig. § 631; Dec. Dig. § 243.^*]

Appeal from Superior Court, Beaufort County; Guion, Judge.

Action by Robert Green and another against John C. Rodman. From a judgment for defendant, plaintiffs appeal. Affirmed.

This action was brought for the redemption of a mortgage and was tried in the court below upon the following facts:

(1) The mortgage was executed by Robert Green and S. T. Hooker to Lawrence Hooker on a lot in Washington, N. C, April 13, 1905, to secure the sum of $1,500 due by note, payable January 1, 1906, with 6 per cent, interest.

(2) On August 26, 1905, Robert Green and S. T. Hooker executed to Miles & Corey a lease of said property for the term of five years, the lessees agreeing to pay, as rent, $50 per month, the first payment to be made on October 15, 1905. The rent was paid to March 1, 1906, but none has been paid since that time. Miles & Corey took possession of the lot under the lease, and remained in possession until the accumulated rents from March 1, 1900, amounted to $1,600, with interest thereon from August 1, 1907.

(3) The lease to Miles & Corey contained a provision that they might purchase the property described therein at any time on or before August 26, 1906, at $5,000 by an actual tender of the money. On January 20, 1906, Miles & Corey commenced in the superior court an action against Robt. Green, S. T. Green, and Lawrence Hooker for the specific performance of the contract to sell contained in the lease. In said suit a judgment, purporting to be by consent, was entered at February term, 1906, and at the same term it was set aside by the court and another judgment rendered, and it appeared in the last judgment that Miles & Corey had purchased the note secured by the mortgage from Lawrence Hooker, and the court thereupon adjudged that they be subrogated to his rights under the mortgage. The court enjoined the sale of the property under the mortgage, which had been advertised. The judgment recites, as the case states, that "Miles & Corey are in possession of the land described in the complaint under the lease or contract from Green &.Hooker, " and "it was ordered that the plaintiffs pay over the rents, as provided in said lease or contract, to the clerk of the court to be held by him pending the adjudication of the rights of the

parties, respectively." Miles & Corey borrowed from Jno. C. Rodman the sum of $500 on March 5, 1906, to enable them to purchase the note, secured by the mortgage, from Lawrence Hooker, and it was so applied, They thereupon transferred to John C. Rodman the said note, secured by the mortgage, as collateral to secure, the indebtedness to him. At April term, 1906, in the case of Miles & Corey v. Green & Hooker, the plaintiffs moved on the pleadings for a decree for the specific performance of the contract of sale contained in the lease on the pleadings, and their motion was denied, and the injunction against the sale of the property, under the Hooker mortgage, was dissolved. The court further adjudged as follows: "The said plaintiffs being subrogated as aforesaid to the (rights of the) said Lawrence Hooker in the premises, it is hereby adjudged that they be at liberty to collect said debt and foreclose the mortgage securing the same." At May term, 1907, upon the trial of the said action, the court having intimated that the plaintiffs were not entitled to specific performance of the contract set forth in the lease, the plaintiffs submitted to a nonsuit, and judgment was entered accordingly. No money was paid into court by Miles & Corey under the former judgment.

(4) Miles & Corey and John C. Rodman advertised the property described in the mortgage for sale in the name of Lawrence Hooker as mortgagee, whereupon the present suit to restrain the sale and. for an accounting was brought by the plaintiffs against the defendants John C. Rodman, Miles & Corey, and Lawrence Hooker. In all of the transactions connected with the transfer of the mortgage by Lawrence Hooker to Miles & Corey and by the latter to John C. Rodman, as well as with the attempted sale under the mortgage, the said Miles & Corey and John C. Rodman were represented by the same attorney, and during all of said time Miles & Corey continued in possession of the property, and failed to pay any rent into court or to Green & Hooker, and the accrued rent amounts to $1,600 as aforesaid. At December term, 1908, in an action...