Cooper v. . Kimball

31 S.E. 346, 123 N.C. 120, 1898 N.C. LEXIS 28

Opinion

Clark, J.:

The land was sold on July 12, 1897, under the deed of trust, the purchaser immediately, during the preparation of the deed, entertained negotiations with the mortgagor, giving him the option to buy back the property or pay rent, his decision to be made in ten days, and he continued in possession in consequence. The trustee’s deed to the purchaser was filed for registration the same day, and a few moments thereafter the defendant filed in the same office a mortgage on the crop, which had been executed on the 31st of March, 1897. This is not expressed to be for advances to be made, and besides it was not recorded within thirty days after its execution, and therefore has no rights as an agricultural lien by virtue of The Gode, Section 1799,. and its amendment, Acts 1889, Chapter 476, and Kille- brew v. Hines, 104 N. C., 181, has no application. It is simply a mortgage which had no effect as to third parties till its registration, and at that time the land with the growing crop thereon had already passed by the filing of the trustee’s deed to the plaintiff. Jones v. Hill, 64 N. C., 198, cited in 104 N. C. at page 195. The sale and conveyance to the purchaser were a most effective assertion of ownership and possession as against third parties, and the mortgagor so recognized it also, as against himself, by treating with the purchaser for the renting or purchase of the property and remaining in' possession under an option given him by the purchaser. Indeed, there being no agricultural lien, or recorded mortgage on the crop, even if there had been no sale and conveyance to the purchaser, an agreement after default between the mortgagor and the mortgagee that the former was to remaiu in possession as tenant, would confer a landlord’s lien upon the mortgagee. Jones v. Jones, 117 N. C., 254, cited and approved in Ford v. Green, 121 N. C., 70. The plaintiff is entitled to recover. Code, Section 1754.

No error.