Cooper v. . Kimball

The land was sold on 12 July, 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 31 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 Code, sec. 1799, and its amendment, acts 1899, ch. 476, and Killebrew v. Hines, 104 N.C. 181, has no application. It is simply a mortgage which had no effect as to (124) 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 remain 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. The Code, sec. 1754.

No error.

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