Jennings v. . Shannon

Adams, J. Mrs. Gregory, as intervener, was not concerned with the controversy' between the plaintiff and his tenant; she was concerned with the protection of her interest in the property. Upon her, therefore, devolved the burden of establishing her title. Lockhart v. Insurance Co., 193 N. C., 8; Sitterson v. Speller, 190 N. C., 192; Temple v. LaBerge, 184 N. C., 252. Eent reserved by a landlord is rent service and passes to the assignee of the reversion. Kornegay v. Collier, 65 N. C., 69; Rogers v. McKenzie, ibid., 218; Bullard v. J ohnson, ibid., 436. In Wilcoxon v. Donelly, 90 N. C., 245, it is said that rents accruing under a contract of lease are incident to and connected with the estate in reversion, and, when the estate is transferred, follow the assignment to the bargainee unless they are at the time overdue or are secured by bond or note, which breaks the connection and separates the obligation from the estate. And in Mercer v. Bullock, 191 N. C., 216, it is said that when mortgaged lands are in the possession of a tenant and a foreclosure is had during the term of the lease, the title to the rent is dependent on that of the property. The intervener did not acquire the legal title to the property until the deed was executed and delivered. The deed was dated 1 January, 1929; it was acknowledged 13 April and recorded 17 August, 1929. The purchase money was not paid at the time of the sale. The date the deed was delivered to the intervener is not definitely ascertained, but when it was delivered the price was secured by a deed of trust. For this reason we are not interested in the question whether full payment on the day of sale would have vested in the purchaser such an equitable interest as would have entitled her to rents subsequently accruing. Grosvenor v. Bethel, 26 S. W., 1096; Note C, L. R. A., 1915 0, 206. The intervener has not shown that the gale was consummated and the deed delivered before the crops had been harvested and divided between the landlord and the tenant. Indeed, the facts seem to be directly the reverse. Collins v. Bass, 198 N. C., 99, cited by the appellant, is authority for the position that where the mortgagee or purchaser has not entered, or the crops are severed before entry, he is not éntitled to them. The mere demand of the intervener, in the absence of evidence that she held a legal or equitable title when she demanded the rent, is not such entry as the law contemplates. Presumably her deed was not delivered *4 prior to the time its execution was acknowledged; if so, when she received her deed the crops had been severed and the landlord’s rent had been paid. The appellant contends that the judgment should be reduced by “any credits or offsets to which the intervener is entitled.” This is an agreed fact; but such credits or offsets should have been set up before the judgment was rendered. Affirmed.