New Hanover Shingle Mills v. Sanderson

Beoww, J. Tbe facts are stated in tbe complaint, and appearing from Exhibits A and B attached to it, are as follows: Tbe plaintiff owned certain timber and conveyed it to tbe Cape Fear Lumber Company by deed dated 24 November, 1905, wbicb is Exhibit B. Tbe Cape Pear Lumber Company conveyed a portion of said timber to Cottle & Lewis by deed dated 3 November, 1906, for an alleged consideration of $1,500. Cottle conveyed bis interest to defendant Sanderson. On 24 November, 1905, a contract was entered into between tbe New Hanover Shingle Mills and tbe Cape Fear Lumber Company providing, among other things, for tbe cutting and payment per thousand feet of said timber, wbicb is Exhibit A. Exhibit B, tbe deed from plaintiff to Cape Fear Lumber . Company, was recorded first. Tbe contract, Exhibit A, was recorded after the deed from Cape Fear Lumber Company to Cottle & Lewis was recorded. Tbe deed of plaintiffs conveyed the timber to the Cape Fear Lumber Company, and this deed, in stating bow tbe timber is to be paid for, contains tbe following clause, wbicb is about all there is relating to tbe payment for same: *454 “Tbe party of the second part is to pay for said timber a certain price per thousand feet, the number of feet to be determined by actual measurement or by appraisement. The manner of making the appraisement, the time within which the timber is to be cut, and the price and manner of payment therefor is set forth in an agreement by the parties of the first part and the Cape Fear Lumber Company, and bearing even date herewith.” We are unable to find in Exhibit B any provision which reserves title to the timber or creates a lien upon it for the purchase money. Nor is there anything in Exhibit A which purports to give a mortgage or other enforcible lien upon the timber for the securing of the purchase money, certainly not as against a bona, fide subsequent purchaser for value, whose deed was recorded before Exhibit A. There is no purchase-money lien in this State, such as prevailed in England. This has been uniformly held since Womble v. Battle, 38 N. C., 182. White v. Jones, 92 N. C., 388; Cameron v. Mason, 42 N. C., 180; Blevins v. Barker, 75 N. C., 436; Peck v. Culberson, 104 N. C., 425. If the complaint proceeded upon that theory alone and stated no other cause of action, we should unhesitatingly sustain the demurrer. But the complaint avers that the Cape Fear Lumber Company is indebted to plaintiff in the sum of $1,075 for stumpage, which is the method provided by Exhibit A for the payment of the purchase money. It appears from the complaint that an attachment has been sued out against the property of the Cape Fear Lumber Company in this action, and the timber conveyed to Cottle & Lewis levied upon in the attachment proceedings, and plaintiff seeks to subject this timber to the payment of his debt, not because of a purchase-money lien, but by process of attachment duly levied. As foundation for the attachment proceedings, the complaint alleges that the Cape Fear Lumber Company, with intent to cheat and defraud plaintiff, fraudulently undertook to convey by deed the said timber to Cottle & Lewis. The allegation of fraud is not as explicit and full as it should be, but it is rather *455 a defective statement of a good cause of action, and may be amended. This averment raises an issue of fraud wbicb should be answered by defendants. The plaintiff should proceed to get service upon the Gape Fear Lumber Company, if possible. The judgment overruling the demurrer and requiring the defendants to answer is Affirmed.