Reynolds v. . Taylor

Hoke, J., after stating the facts:' The landlord’s lién, where the same attaches, by the express terms of the statute .is,made superior to all other liens. This statutory lien, however, is only given when lands are rented or leased for agricultural purposes. - „ The statute, Revisal, sec. 1993, provides as follows: “When lands are rented, etc., for agricultural purposes, unless otherwise agreed between the parties, the crops, etc., shall be vested in the lessor till the rent for said lands shall be paid.” In Howland v. Forlaw, 108 N. C., 567, in considering a claim of this character, the Court held that the common-law repie-dy of lessors by distress does not -obtain in this State; and that, unless specially given by statute, a landlord has no lien on the product of the leased, property for rent. Unless, therefore, the $40 which remains due and unpaid from Joe Tisdale, the tenant, to tlje estate of Thomas Reynolds, his former landlord, is rent due for lands leased for agricultural purposes, there is no lien given by this statute for unpaid rent, and the claim of the defendant, by reason of his agricultural lien, must prevail. *168 Tbe cause having been instituted in a justice’s court, there were no written pleadings, and ■ the plaintiff, stating his claim orally, contended that the contract was entire and indivisible; that Tisdale, under the same, rented the property as a whole, and was to pay therefor $40 and one-fifth of the cotton and tobacco and one-fourth of the other crops as an entire rent; and there was no apportionment of any distinct part of the rent to be-'paid for the house, and offered evidence tending to support the claim as made. If this position is established under a correct charge and on an issue properly responsive to plaintiff’s claim, as stated by him, then we think the plaintiff has a landlord’s lien on all the products grown on the land till his entire rent is paid. On the contrary, defendant, stating his claim, contended (and offered evidence tending to show) that the contract for the store and the lands were two separate and distinct transactions, entered into at different times. And, second, even if made at one time as an entire contract, that by its terms a distinct part of the rent was apportioned for the use of the store, to-wit, $40; and a portion for the use of the agricultural land, to-wit, one-fifth of the tobacco and cotton and one-fourth for the remainder. If either position contended for by defendant is established, then plaintiff has no lien for the $40 remaining unpaid. It is due and owing for the use of the storehouse for mercantile purposes, and not for lands for agricultural purposes.' An examination of the charge of the Court will show that too much stress was laid on the fact that the contract was for the whole property, made at one and the same time; and that the charge ignores, in fact repudiates, the position that, even if this were true, if it were made for the entire property and *169 at one and tbe same time, and by its terms apportioned a distinct part of the rent to accrue for the storehouse, to-wit, the $40, such rent could, under no proper construction, be awarded as rent of land for agricultural purposes. Defendant’s counsel, in apt time, requested the Court to instruct the jury as follows: “1. Eren' if store was rented at same time the lands were rented, but the land for the fourth and fifth and the store for forty dollars, that the rent of the store would not be .a lien of landlord upon crops raised on lands rented for fourth and fifth.” The Court refused to gire said instruction, and the interrenors excepted. “2. That the land and the store might hare been rented ' at same time and still the contracts ’ sereral, and rent of store not a lien on crops oil lands rented for fourth and fifth.” The Court refused to gire sáid instruction, and the interrenors excepted. AYe think that both of these positions are substantially correct,. and defendants are entitled to hare this riew pre-sentedj either in the principal charge or in response to their prayers for instructions; and for this error there will be a new trial. It may be well to note that the issue as framed is not fully responsive to plaintiff’s claim; and the respective positions of the parties should be either presented on a general issue similar to that tendered by plaintiff, or, if the trial Judge desires that the issue should be more specific, it might be framed so as to determine whether by the terms of the contract the rent was entire for the property as a whole, or whether by the same or a different contract there was a distinct amount apportioned as rent for the building to be used as a storehouse; and if so, what sum. For the error pointed out there must be a new trial, and it ■•is-so ordered. New Trial.