Never Fail Land Co. v. Cole

Clarkson, J. This is an injunction proceeding. In Hyatt v. DeHart, 140 N. C., at p. 271, the law as stated: “Ordinarily, the findings of fact by the judge below are conclusive on appeal. While this is not true as to injunction eases, in which we look into and review the evidence on appeal, still there is the presumption always that the judgment and proceedings below are correct and the burden is upon the appellant to assign and show error.” Seip v. Wright, 173 N. C., 14; Wentz v. Land Co., 193 N. C., 32. In Long v. Meares, 196 N. C., 212-3, speaking to the subject of the principal binding a surety on a. replevy bond, the following principle is laid down: 'While, of course, it is fully recognized in this jurisdiction that extension of time granted to the principal or other acts which may result in substantial prejudice to the surety will discharge such surety; nevertheless, this principle does pot apply to a replevin bond given in a pending suit in conformity with the provisions of the statute. The reason is that, in such cases, sureties on such bonds within the limits of their obligation are considered parties of record, and the defendant, their principal, becomes their duly constituted agent to bind them by compromise or adjustment or in any other manner within the ordinary and reasonable purview and limitation of the action. McDonald v. *456 McBryde, 117 N. C., 125, 23 S. E., 103; Wallace v. Robinson, 185 N. C., 530, 117 S. E., 508; Trust Co. v. Hayes, 191 N. C., 542, 132 S. E., 466.” 2 R. C. L., p. 316. It appears of record, and is not 'denied by defendants, that the notice to the principal in the judgment in Cole v. Cooper was made 29 November, 1926, and the original judgment was modified some twenty-two months after the rendition of said original judgment, and no notice of sucb motion was given to the plaintiff, Never Eail Land Company, the surety on the replevy bond. Tbe question presented for our decision: After a final judgment is rendered in an action against a principal and not against the surety on a replevy bond in claim and delivery, at Fall Term, 1925, can notice to the principal, but not to the surety, to modify thé judgment made 29 November, 1926, and judgment taken against the principal and surety at December Term, 1926, some twenty-two months after, be binding on the surety? "We think not. Defendants in their brief say: “There can be no question that the judgment of February, 1925, Term, was a final judgment against Cooper until be consented to amend or correct it.” This is true as to Cooper, but bis agency as to Never Fail Land Company, bis surety, was at an end. C. S., 592, is as follows: “A judgment is either interlocutory or the final determination of the rights of the parties in the action.” A judgment is final which decides the ease upon its merits without reservation for other and future directions of the court. Sanders v. May, 173 N. C., 47; Simmons v. Dowd, 77 N. C., at p. 157; Polson v. Strickland, 193 N. C., at p. 301. In Bunker v. Bunker, 140 N. C., at p. 24, the following observations are made: “That this was a final judgment there can be no doubt. It possessed all of the elements and characteristics of sucb a judgment. It decided the case upon its merits, without any reservation for other and future directions of the court, so that it was not necessary to bring the case again before the court; and when it was pronounced, the cause was at an end and no further bearing could be bad. Flemming v. Roberts, 84 N. C., 532; McLaurin v. McLaurin, 106 N. C., 331.” We think that when final judgment was taken at February Term, 1925, in the case of Cole v. Cooper, the agency of Cooper as a principal on a replevy bond to- bind bis surety was at an end. Tbe judgment was a revocation of agency. 1 Freeman on Judgments (5th ed.), at pp. 340-1, states the matter thus: “In view of the broad power of the court to vacate, alter or amend a judgment during the term at which it was rendered, where that power exists notice would seem to be unnecessary to its valid exercise, and it has been so held. On the other band, it has *457 been frequently said that notice should be given of proceedings initiated after the expiration of the term, even to- correct a clerical error or to make the record speak the truth. This is certainly true with respect to an amendment in a matter of substance which changes the rights or liabilities of the adverse party. Such a change in a judgment, whereby it is made to grant relief different from that granted when it was rendered, is absolutely void as against a party having no notice of the application to thus amend it.” Plaintiff is standing on its strict legal rights. It was Cole’s misfortune to inadvertently name the surety on the bond as Pine Yiew Farm Company, instead of Never Fail Land Company, which was the surety on the bond. "We see nothing in the record that estops plaintiff. The fact that it received the proceeds of the tobacco was nothing inequitable. The record discloses that S. J. Cooper was the subtenant of S. S.'Puckett, who was the tenant of the Never Fail Land Company. The referee found “that the said tobacco so seized was raised by the said S. J. Cooper on the said lands so leased during the year 1922; that the said S. J. Cooper is indebted to the said S. S. Puckett, as his landlord, in the sum of $509.91 for rents and advancements for the year 1922; and that the said S. S. Puckett is indebted to the Never Fail Land Company as his landlord, in the sum of approximately $1,600 for rents and advancements for the year 1922.” The landlord’s right to the crop to secure payment of rent is not. impaired by the subletting of his tenant. The subtenant’s crop may thereby be subjected to a double lien, that of the landlord and that of his immediate lessor, but the lien of the landlord is paramount. Montague v. Mial, 89 N. C., 137; Moore v. Faison, 97 N. C., 322, 324; S. v. Crook, 132 N. C., 1053, 1054. C. S., 2355. In Crook’s case, supra, any one aiding or abetting the subtenant in removing the crops from the land before the landlord’s lien is paid, is guilty of a misdemeanor. The intent is immaterial. C. S., 2362. The fact that the Never Fail Land Company did not intervene in the action of Cole v. Cooper is no estoppel under the facts disclosed in.this case. The principal in a replevy bond may be deemed a statutory agent for the surety, and like any other agent, is bound to exercise the utmost good faith towards his surety; this is common honesty as well as law. In law as in morals “It may be stated that as a principle no servant (the agent) can serve two masters, for either he will hate the one and love the other or else he will hold to the one and despise the other.” Luke XYI: 13, 21 E. C. L., at p. 827. Cooper could have set up the superior lien of the landlord Puckett and the Never Fail Land Company, against the claim of Cole. The chattel mortgage of Cooper said “all my interest,” etc. He could not, *458 and did not, give a lien superior to tlie landlord’s. Tbe referee found tbat Puckett owed tbe Never Fail Land Company approximately $1,600 for rent and advances. Cooper, under tbe Landlord Act, altbougb a subtenant of Puckett, was bound for Puckett’s rent and advances, wbicb amounted to $1,600. Under all tbe evidence of record, it shows tbat tbe chattel conveyance to Cole, “all my interest,” etc., amounted to (nothing if tbe landlord’s liens were paid. Tbe 2,500 pounds of tobacco seized was worth $700, according to tbe verdict of tbe jury, and judgment of tbe court at February Term, 1925. If tbe Never Fail Land Company got tbat'amount, as found by tbe referee, it only got a part of what it was entitled to under tbe law. Tbe law may be bard tbat tbe landlord can take tbe subtenant’s crop for tbe tenant’s rent and advances, but it is so written, and has long been tbe settled law of this jurisdiction. On all tbe facts appearing of record, we think tbe injunction should have been made perpetual. For tbe reasons given, there is Error.