State v. . Garris , 98 N.C. 733 ( 1887 )

The defendant is indicted for obtaining credit and supplies for plantation used in cultivating crops, to be raised of cotton, corn and cotton seed on his land, during the year 1886, furnished pursuant thereto, and to secure which a mortgage of said property was executed to them, by means of false and fraudulent representations, made to Philip Schiff, a member of the firm from whom the supplies were procured, that no prior mortgage of the crop had been made.

The indictment contains three counts, substantially the same, varying in unimportant particulars only, and presenting the offense in different aspects. (734)

The defendant, upon his arraignment, pleaded not guilty, and upon the trial the State, after offering evidence of the alleged false representations and pretenses, in reliance upon which the goods were furnished, introduced certain documentary proofs, to wit:

1. A mortgage deed, executed on 21 April, 1886, by one J. W. Rice and the defendant to said partnership of Schiff Co., reciting an indebtedness by note in the sum of eighty dollars, due on the first day of October following, and conveying, in the words of the deed, "all our crop of cotton, corn and cotton seed to be raised by either of us duringthe year 1886, on the place of S.E. Garris — no other mortgage on the same property," upon certain trusts therein specified, and with a power of sale, if the debt was not discharged at maturity, for its payment.

2. A mortgage deed, made on 2 March, 1886, by the defendant to the firm of R. M. White Co., reciting a debt by note for two hundred and fifteen dollars, due on 15 October thereafter, and in which is conveyed for its security, and with a like power of sale in case of default, "these articles of personal property, to wit: one mouse-colored mule, one red, muly cow, one red heifer, and all the crop of corn and cotton raised by me thepresent year."

After much testimony had been heard by the jury of what transpired between Schiff and the defendant to prove the representations, and their falsity, upon which, under the supposed security of the mortgage, the credit was given and the goods supplied, the defendant proposed to show, by parol, that the note given to Schiff Co. was for an indebtedness of Rice, and was signed by him as a surety, without seal, and that the mortgage extended to their joint crop.

The evidence was held to be incompetent, and refused, to which the defendant excepted.

(735) The defendant insisted that the mortgage to R. W. White Co. was inoperative to pass any title to the crops of cotton and corn mentioned in the second mortgage, because the land on which they were to be raised was not directly nor by reference described and identified.

The court held such to be the effect of the mortgage upon its face, but admitted parol evidence to supply the defect in the description, and it was accordingly shown by the testimony of one Porter that the defendant had only one place in the county, where in 1886 he lived, worked and planted cotton.

The verdict was against the defendant, and from the judgment he appealed, assigning as errors:

1. The ruling out of the evidence offered to show his relationship to the transactions with Schiff Co. and the extent of the mortgage security.

2. The refusal to admit testimony to prove that when the indictment was found the crop was ungathered, and that after it was gathered the debt due Schiff Co. was paid therefrom in full.

3. The receiving of proofs outside the deed to correct its imperfect description, and show what crops were meant, so as to give the deed efficacy and operation. 1. The essence of the indictment is in the imputed intent to deceive and defraud, and thereby to obtain the goods of the defrauded owner. Unless this intent exists, and is found, the offense is not committed, and can only be inferred from the acts and declarations, and especially from such as occurred at the time of committing of the alleged fraud. Whatever tends to show that the person charged acted under a misapprehension tends to (736) repel the imputation, and becomes competent upon this inquiry. Much latitude must therefore be allowed in the reception of evidence bearing upon the issue of an intent to deceive and defraud, and we are not disposed to deny the competency of the rejected evidence, so far as it bears upon this point, and is not intended to vary or modify the terms of the written instrument.

2. The defendant has had the benefit of what occurred subsequent to the indictment, and he, at least, cannot complain of the ruling.

3. The judge correctly held that, by itself and unaided by extrinsic proofs, the crops mentioned in the first mortgage did not pass, and this is in accordance with the rulings in this Court. Atkinson v. Graves,91 N.C. 99; Rountree v. Vinson, 94 N.C. 104; Woodlief v. Harris,95 N.C. 211.

These cases establish the proposition that, to make effectual a mortgage of an unplanted crop, it must not only be raised by the mortgagor, but upon land sufficiently described in the deed, or by reference therein for identification, and, in Wooten v. Hill, ante, 48, confining it to crops grown on land next thereafter to be cultivated, and not extending to future successive years. The admission of proof of the understanding of the parties as to the land to be cultivated seems to have been allowed in consequence of a remark of Mr. Justice Ashe in Rountree v. Vinson, supra, in which he says, "The defect might possibly have been cured by parol evidence, offered to apply the description to the subject-matter intended to be conveyed." This intimation follows the declaration that "the description of the cotton, corn and fodder mentioned in the deed of mortgage was too vague and uncertain to pass any title to the property to the mortgagee." Page 108, Rountree v. Vinson, supra.

Now, while it is true, that a deed conveying one of several articles of personal property belonging to the owner, perhaps not capable of being distinguished by words of description from others of the same kind, and the defect not patent until an attempt to fit the (737) description to the thing intended, may be aided by extrinsic evidence.

Thus, in Blakely v. Patrick, 67 N.C. 40, where the mortgage was of ten new buggies, the mortgagor having more than that number on hand, and there was no delivery, Pearson, C. J., said : "To vest the title or ownership in any particular buggy, it was necessary to set them apart, so as to make a constructive delivery and effect an executed contract"; and this, of course, could only be shown by parol evidence given to the jury.

So, in Goff, v. Pope, 83 N.C. 123, it is said: "A horse, a buggy or a cow is sold: how can the article be separated from many others of the same class except by the aid of parol testimony? The generality of the description, in many cases unavoidable, is latent ambiguity, discoverable when the object is sought, and removable by outside evidence of intent." And again, so late as February Term, of the present year, the same principle is reiterated in Spivey v. Grant, 96 N.C. 214, and the mode of identifying pointed out.

But these decisions do not apply to the disposal of an unplanted crop — a thing not in esse — and when the description upon the face of the instrument is vague and incurable. Such property can only pass when of future growth, if the land, of which it is to be the fruit, is designated and this is the only means of identification.

The case of Rountree v. Vinson was not one of conflicting claims of different mortgagees, but it was a controversy between the administrator of the mortgagor and the mortgagees, and has some of the features of an unperformed contract, to be enforced. But we are clearly of opinion that the deed of 2 March, 1886, to R. M. White Co. cannot prevail against that of 21 April to Schiff Co., and that no parol proof was admissible to make it valid and effectual. As then the property (738) passed under the last deed, and Schiff Co. stand in the same relation to it as if the prior deed had not been made, there was, in legal consequences, no antecedent mortgage, no false representation as to the title and present capacity in the defendant to make the conveyance, the charge is not sustained.

For the error assigned the verdict must be set aside and a venire denovo awarded.

Error.

Cited: S. v. Logan, 100 N.C. 457; Smith v. Coor, 104 N.C. 141;Taylor v. Hodges, 105 N.C. 348; Loftin v. Hines, 107 N.C. 360; Hurleyv. Ray, 160 N.C. 379.