Rawlings v. . Hunt

90 N.C. 270

• Court: Supreme Court of North Carolina
• Decided: February 5, 1884
• Status: Published

Opinion

Mérrimos, J.

It is settled that a contemplated unplanted crop to be made by the mortgagor on his own land or land let to him, as well as one planted and in process of cultivation, may be the subject of a valid mortgage. Cotton v. Willoughby, 83 N. C., 75; Harris v. Jones, Ib., 317.

The deed from Jacob Arrington to the plaintiff operated as a mortgage with power of sale in favor of the latter, upon the horse and the lien upon the crop to be made conveyed by it, notwithstanding the purpose therein mentioned to create an “ agricultural lien.”

The defendant insisted that the operative conveying words iii the deed do not embrace the crops to be produced. We cannot accept this interpretation of its provisions.

The operative words are, “ the party of the first part sell and convey to the party of the second part” * * * “one bay horse: to have and to hold to the use of the party of the second part, his heirs and assigns forever; also, a lien upon each and every of said crops to be cultivated and made during the said year,” &c. It then proceeds to give the mortgagee the right to take possession of the crops and sell them in the contingencies specified.

At the end of the word “forever” is a semicolon, denoting a succeeding clause upon the same subject, then comes the word “also.” This latter word, as here employed, is a copulative conjunction connecting the two clauses, and it implies likewise, in like manner, in addition to, besides — noting addition or conjunction. Sec Webster, Worcester and Burrill’s Raw Dictionary; Pain v. Snelling, 5 Ea., 87; 4 M. & S., 58; 1 Salk., 239. The word is significant and important; it cannot bo treated as meaningless or mere surplusage; it must be treated as doing its complete office in connecting two important clauses of the instrument, and having effect in that way. Besides, if it were treated as the beginning of a separate paragraph or sentence, or of an independent subject, or if it should be 'rejected altogether, it would leave the provision of the deed as to the liens and the crops in an exceedingly awkward if not meaningless condition.

This case is in all material respects like the cases of Cotton v. Willoughby and Harris v. Jones, supra, and must be governed by them.

It was contended on the argument for the appellees that if the deed could operate at all, and as a mortgage of the horse, it could not so operate as to the crops; that as to the crops it was inoperative, or if operative at all in that respect, it constituted only an “ agricultural lien ” to secure the sum of $29.90 advanced by the plaintiff after the execution of the deed.

We think the deed might be treated as creating an “agricultural lien” on the crops to secure the advancement of $29.90. It has all the necessary requisites for that purpose, but it goes further in this case; it has all the essential elements of and it creates a mortgage on the crops as well as the horse. No par- ticnlar formula of words arc essential to create a mortgage of personal property. Any words that express the purpose to create a lien and give the mortgagee power over and control of the property, with power of sale, or to have it sold to pay the mortgage debt, are sufficient. As we have seen in this case, the mortgagor used apt words of conveyance as to personal property, and provided in terms that the plaintiff should have the right to take possession of the property, including the crops, and sell the same to pay his debt.

It is not true, as contended, that an instrument intended as an “agricultural lien ” must effectuate that purpose and none other, or be treated as necessarily inoperative for all purposes. A written instrument, whether deed or otherwise, to create such a lien must indeed conform to the statutory requirements, else it cannot operate to create such lien; but if the instrument will bear such a construction as will effectuate the purpose of the parties, it must be so construed and treated. As, for example, if it would not operate to create the “agricultural lien,” but has all the requisites of a mortgage of personal property, it would be so treated and upheld. If a written instrument, as a deed, fails to effectuate one purpose specified in it, yet it will effectuate another purpose plainly agreed upon in it, it must be upheld for the latter purpose. We can see no reason why it should not be, and in such case every reason why it should be, as completely as if provided for in a separate instrument. Nor can we see any good reason -why the same instrument may not be so framed as to operate in one part of it as a mortgage and in another as an “ agricultural lien.”

It was suggested on the argument that this court had decided otherwise in Clark v. Farrar, 74 N. C., 685. A slight examination of that case will show the contrary. It decides the instrument there in question v'as fatally defective, and did1 not create an “agricultural lien”; but Mr. Justice Bynum, delivering the opinion, expressly passed by the question whether or not it could operate as a mortgage. He said, “without stopping to enquire whether the only operative words in the defendant’s deed, to-wit: “the said O. C. Farrar shall have a lien on all crops,” &c., can be construed into a conveyance of the crops to the defendant, we pass to that view of this part of the case which is decisive.” He then properly proceeds to show that the instrument was false upon its face and fraudulent as to creditors, and could not, under the guise of an “agricultural lien,” deceive and mislead them to their prejudice.

And it was also insisted that this court had decided otherwise in Patapsco v. Magee, 86 N. C., 350. That case does not justly bear the construction the defendant’s counsel give it. It cites ■Clark v. Farrar, supra, as in point for a purpose, and so it was. The learned judge then added, obiter, that, “according to the same authority, an instrument, which, as intended by the parties to operate as an agricultural lien, and which purports to be one, must take effect as sueh, or not at all, and will not be permitted to prevail as a mortgage.” We have seen that the case referred to does not sustain the view of it thus expressed. Besides, the court then adverts to the fact, that the instrument there under consideration did not convey or purport to convey the title of the property, which was the subject of agreement.

The plaintiff, in our judgment, is entitled by virtue of the mortgage in his favor, to have the possession of the property, including all the crops therein mentioned, to sell the same and ¡iay his mortgage debt, or so much thereof as has not been discharged; and the surplus, if any, will belong to the defendants according to their respective rights, taking it that Arrington owes them, as they allege, for advancements.

This is an action at law; no equitable rights are set up in the pleadings; and we are not called upon, indeed, we cannot undertake, to adjust any possible equities in favor of the defendants. We are not at liberty to express an opinion as to whether or not the plaintiff is chargeable in equity-with the horse mentioned in the deed, or how he must apply the proceeds of the bale of 'cotton he received as part of the crops. We pass only upon the legal rights of the plaintiff as they appear in the record. .

The court ought to have given judgment for the plaintiff upon the case submitted to it, and as it did not, there is error, for which the judgment must be reversed, and judgment entered hero for the plaintiff.

This judgment does not extend to any other case. This court' cannot take notice of and act upon a stipulation as to other cases turning upon the principles applicable to this case.

Judgment reversed, and judgment for the plaintiff.

Error. Reversed.