Knight v. . Rountree

*393 MekriMON, J., (after stating the case). The case as stated in the record fails to designate with precision, as it should do, the questions which the parties intended to have settled by the appeal, and we are left in large measure to find them, if we can. The record is obscure, and if we fail to discover all of them, such failure must be attributed to the negligence of the parties in presenting their case intelligibly, and as the statute directs. It seems that the appellees contended, first, that as the intestate of the plaintiff paid the debt of Hutchinson, cashier, &c., specified in the second mortgage executed to him on the second day of December, 1882, which embraced the cotton in controversy, such payment discharged this mortgage absolutely, and therefore their title to the same cotton acquired by the subsequent mortgage to them of December second, 1882, was unaffected by the mortgage to the intestate. This contention is unfounded. The chief and leading purpose of the mortgage was fo indemnify — to save the mortgagee “harmless by reason of his said suretyship.” The deed of mortgage passed the title to the cotton to the intestate of the plaintiff, and, by its terms and spirit, contemplated and intended that he might, in the contingency provided against, sell it to pay the debt mentioned, or, if he paid it, as lie was bound to do, then sell it to repay himself the money he so laid out. The intent was not simply to secure the payment of the debt to him to whom it was payable, but as well and as certainly to save himself, the surety — the intestate, harmless — and the mortgage continued operative and in full force for that purpose until this should be done, unless he should sooner see fit to discharge it. The mere fact that the last mentioned debt was a balance of the debt due to Atkinson, Cobb & Co., specified in the first mortgage to the intestate, could not affect adversely the second mortgage to him. It seems that it came about that such balance became the debt to Hutchinson, cashier, &c., *394 with the intestate as surety. The latter .plainly had the right to take the second mortgage mentioned, embracing the land and cotton, to indemnify himself. We cannot conceive of a reason why he might not. It seems, also, that the appellees contended, secondly, that the mortgage so executed to them was not simply a mortgage, but that it was as well and in addition a lien upon the crops embraced by it, as allowed and created by the statute, (The Code, § 1799,) to secure to them money advanced by them to cultivate the land and produce the cotton in question, which lien, as to the crops produced, is superior to the mortgage of the intestate and like mortgages. Wooten v. Hill, 98 N. C., 48. The mortgage of the appellees cannot be upheld as a lien, under the statute just cited, for advancements of money to the mortgagor, to be expended in the production of the crops, if the same were advanced for that purpose prior to its execution. It is settled that such advancements of money and of supplies for such purpose must be advanced after the making of- the agreement in writing in that respect, in order to create such lien. Clark v. Farrar, 74 N. C., 686; Patapsco v. Magee, 86 N. C, 350; Reese v. Cole, 93 N. C., 87; Townsend v. McKinnon, 98 N. C., 103. Now, the crop year of 18S2 was nearly if not quite over when the mortgage to the appellees was executed, and it appears, from the recitals in the deed, that the advancements of money were made mainly, if n'ot altogether, before it was executed. It does not appear that they advanced to the mortgagor any money after that time, and if they did, this should have been made to appear. It was suggested on the argument here, that the appellant ought to be required to apply a part of the money realized for the land, which was a security embraced by both the appellants’.mortgages, to the payment of the debt secured by his second mortgage, and thus leave the cotton in question *395 to the appellees to pay their debt, they having a lien only on that to secure their debt. This cannot be allowed, because the money realized from the land, as appears, was insufficient to pay the debts secured by the first mortgage mentioned. The parties agreed that the Court should enter judgment for one of two sums of money specified, accordingly as it might be of opinion with the plaintiff or defendants. What particular questions the Court decided adversely h> the plaintiff — the appellant — we cannot clearly learn; we can only infer, with tolerable confidence, that it decided the-questions to which we have adverted above, adversely to him, and therefore gave him judgment for the smaller amount. There is, therefore, error. The judgment must be reversed, and judgment entered in the Court below in favor of the plaintiff for the sum of four hundred and thirty dollars and seventy-two cents, with interest thereon from the-ninth day of January, 1883, according to the terms agreed, upon by the parties. Error.