McNeill v. McDougald

• Decision Date: 25 May 1955
• Docket Number: No. 598,598
• Parties: Robert McNEILL v. A. G. McDOUGALD, Jr.
• Court: North Carolina Supreme Court

Page 502

87 S.E.2d 502

242 N.C. 255

Robert McNEILL v. A. G. McDOUGALD, Jr.

No. 598

Supreme Court of North Carolina.

May 25, 1955

Powell & Powell, Whiteville, for plaintiff-appellant.

Oliver Carter and Hewlett & Williams, Wilmington, for defendant-appellee.

PARKER, Justice.

When a verdict is set aside for error in law, and not as a matter of discretion, the aggrieved party may appeal, provided the error is specifically designated. Akin v. First Nat. Bank, 227 N.C. 453, 42 S.E.2d 518; Powers v. City of Wilmington, 177 N.C. 361, 99 S.E. 102. Here, the Trial Judge stated that he set the verdict aside, and granted a new trial on the ground that he inadvertently failed to charge the law as contained in G.S. § 44-63. This suffices for the appeal.

G.S. § 44-63 reads: 'If any person in the counties mentioned in the preceding section,'--the county where the tobacco crop here was raised and taken is named in the preceding section--'after executing a lien as aforesaid for advances, fails to cultivate the lands described therein, or does any other act calculated to impair the security therein given, then the person to whom the lien was executed is relieved from any further obligation to furnish supplies, and the debts and advances theretofore made become due and collectible at once, and the person to whom the instrument was executed may proceed to take possession of, cultivate and harvest said crops, and to sell the other property described therein. It is not necessary to incorporate such power in the instrument, but this section is sufficient authority for the same. The sale of any property described in any instrument executed under the provisions of this chapter may be made at any place in the county where such property is situated after ten days' notice published at the courthouse door and three other public places in said county.'

A failure of the court to charge the law on the substantial features of the case arising on the evidence is prejudicial error, even though there be no request for special instructions to that effect. Barnes v. Caulbourne, 240 N.C. 721, 83 S.E.2d 898; Howard v. Carman, 235 N.C. 289, 69 S.E.2d 522; State v. Bryant, 213 N.C. 752, 197 S.E. 530; G.S. § 1-180. This is a substantial legal right. Spencer v. Brown, 214 N.C. 114, 198 S.E. 630.

It is the duty of the judge to declare and explain the statutory law as well as the common law on the substantial features of a case arising on the evidence. Barnes v. Teer, 219 N.C. 823, 15 S.E.2d 379; Kolman v. Silbert, 219 N.C. 134, 12 S.E.2d 915; Bowen v. Schnibben, 184 N.C. 248, 114 S.E. 170.

Where a judge's charge eliminates from the case a substantial part of it, which would necessarily prejudice one of the parties, it is prejudicial error. Bowen v. Schnibben, supra; Matthews v. Myatt, 172 N.C. 230, 90 S.E. 150.

We said in the recent case of Hall v. Odom, 240 N.C. 66, at page 70, 81 S.E.2d 129, at page 132: 'It is not to be understood that a landlord cannot by agreement, express or implied, waive his lien, or by his acts and conduct be estopped from asserting his lien.' See also Adams v. Growers' Warehouse, 230 N.C. 704, 55 S.E.2d 331; 52 C.J.S., Landlord and Tenant, §§ 650 and 819.

The essence of McDougald's defense is that the plaintiff by his acts, words and conduct is estopped to deny that the tobacco crop was the property of his wife, Josephine McNeill; that McDougald had liens on it for supplies and advances executed by her and Burney upon their respective interests therein, in conformity with G.S. § 44-62; that Josephine McNeill and Burney, by permitting the tobacco to burn up in the field and by improper curing of it, did acts impairing the security of his liens, and thereby pursuant to G.S. § 44-63 their debts secured by these liens became due and collectible at once, and he had the right to take possession of and sell the tobacco crop.

It is plain that the provisions of G.S. § 44-63 providing that the lien shall become due and collectible at once, if the person executing the lien does any act calculated to impair the security therein given, has no application, unless there is a valid lien. It is also plain, that if the plaintiff is estopped to deny that defendant had valid liens, that fact alone would not make the liens due and collectible prior to their maturity date.

The judge charged the jury, that if they found by the greater weight of the evidence, the burden being upon the defendant, that the facts in respect to estoppel were as contended by the defendant, they would answer the issue: 'Did the defendant wrongfully seize and convert to his own use the tobacco crop of the plaintiff Robert McNeill,' No.

Does the answer to the first issue establish the fact that defendant had no valid liens on the tobacco crop, and make the judge's failure to charge the provisions of G.S. § 44-63 as to when a lien could become due and collectible at once under certain circumstances immaterial?

The first issue does not squarely present to the jury the sole question as to whether plaintiff was estopped to deny that the defendant had valid liens--it presents the question as to whether or not there was a wrongful seizure and conversion. It seems clear that in the trial below the plaintiff contended that the defendant wrongfully seized the tobacco crop before the liens were due, because the judge in charging on the issue of punitive damages so stated, and because at the end of the charge the defendant requested the judge to charge, 'that a mortgagee may seize a chattel even before the obligation becomes due under circumstances showing an impairment of security,' which request was refused. If the defendant had valid liens, and seized the tobacco crop before the liens were due, it was a wrongful seizure.

It seems that one of the essential theories of the trial below in respect to the first issue was this: the plaintiff contended that there was a wrongful seizure before the liens were due; the defendant contended that the liens were due and collectible under the provisions of G.S. § 44-63. This theory is as deeply imbedded in the first issue as the theory of estoppel. The judge eliminated from the case this substantial part of the defendant's defense supported by his evidence that his liens were due and collectible when he seized the...