Killebkew v. Hines

• Court: North Carolina Supreme Court
• Writing for the Court: Merrimon, J.
• Citation: Killebkew v. Hines, 10 S.E. 251, 104 N.C. 182 (N.C. 1889)
• Decision Date: 04 November 1889
• Parties: Killebkew et al. v. Hines et al.

10 S.E. 251

(104 N.C. 182)

Killebkew et al.

v.Hines et al.

Supreme Court of North Carolina.

Nov. 4, 1889.

For majority opinion, see ante, 159.

Merrimon, J., (concurring.)

It seems to be suggested by implication in the opinion of the court in this case that something, not specified, was decided in Brewer v. Chappell, 101 N. C. 251, 7 S. E. Bep. 670, and Coor v. Smith, 101 N.C.261, 7 S. E. Rep. 669, inconsistent with what is decided in this case, and to that extent they are overruled. In my judgment such suggestion is unfounded. Those cases were well considered by the court, and, I think, correctly decided. The application of the law in them is sustained by reason, and the authorities cited, and many others that might have been cited; and they are not inconsistent with, certainly, the substance of what is decided in this case. In Brewer v. Chappell, supra, it is held that a mortgagor in possession of the land, after the condition of the mortgage is broken, had no right to give an " agricultural lien " upon a prospective crop to be made on the land as against the mortgagee, in the absence of a contract allowing him to do so, upon the ground that at law the mortgagee is the owner of the land, and the mortgagor remaining in possession after condition broken, in the absence of agreement to the contrary, is not in possession as of right, but by permission of the mortgagee. His possession is that of the mortgagee, and the latter might turn him out of possession at his will and pleasure, without notice. Coor v. Smith, supra, rests upon the same principle. The equitable rights of the mortgagor were not adverted to in those cases, because it was not necessary to do so, and because such rights of the mortgagor are subject to the rights of the mortgagee until the mortgage debt shall be discharged. Such is certainly the settled law of this state. In Williams v. Bennett, 4 Ired. 122, Chief Justice Ruffin said that "the mortgagor was concluded by his deed; and, after its execution, his possession is by consent of the mortgagees, and is in law their possession." In Jones v. Hill, 64 N. C. 198, Justice Rodman said: "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 maybe ejected at anytime by the mortgagee, without notice. The mortgagee is entitled to the estate, with all the crops growing ontt. 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...