First Carolinas Joint Stock Land Bank of Columbia v. Page

Stacy, C. J.' Who is entitled to the crops growing on the land at the time of the foreclosure, the plaintiff or the defendants ? It may be observed in the outset that when the land in question was leased to the defendants, January, 1931, the mortgagor was in possession with the right to “hold and enjoy the said premises” under the express terms of plaintiff’s deed of trust, and it was contemplated by the parties that the mortgagor should either cultivate the farm himself or lease it for farming purposes, for it is further stipulated that the rents and income from said premises are thereby assigned to the plaintiff as security for any unpaid installments for each and every year that any installment or installments may be unpaid. Compare Dunn v. Tillery, 79 N. C., 497; Killebrew v. Hines, 104 N. C., 182, 10 S. E., 159; Carr v. Dail, 114 N. C., 284, 19 S. E., 235; Hinton v. Walston, 115 N. C., 7, 20 S. E., 164; Credle v. Ayers, 126 N. C., 11, 35 S. E., 128. It would seem, therefore, that these provisions inserted in the deed of trust, take the case out of the principle announced in Collins v. Bass, 198 N. C., 99, 150 S. E., 706, Bank v. Purvis, 201 N. C., 753, 161 S. E., 386, to the effect that a purchaser at a foreclosure sale under the power contained in a mortgage is entitled to possession as against the tenant of the mortgagor claiming under a lease made with knowledge of the mortgage and after its maturity and default. 19 R. C. L., 628. This renders it unnecessary for us to consider the effect of chapter 173, Public Laws, 1931, enacted in consequence of the decision and suggestion in Collins v. Bass, supra. Nor is the principle announced in Mercer v. Bullock, 191 N. C., 216, 131 S. E., 580, that the purchaser is entitled to all rents falling due after the foreclosure, applicable to the facts of the present case, for, in the first place, no rents fell due after the foreclosure, and, in the *251 second place, all the rents and the income from the premises had previously been assigned as security for the unpaid installments of each and every year. 19 R. C. L., 630. Compare Pate v. Gaitley, 183 N. C., 262, 111 S. E., 339. We think the plaintiff is estopped by the terms of the deed of trust, under which it acquired title, to claim the crops in question as against the defendants. Coxe v. Dillard, 197 N. C., 344, 148 S. E., 545; Peel v. Peel, 196 N. C., 782, 147 S. E., 295. Error.