Hinton v. . Walston

Shepherb, C. J.: Conceding, for the purpose of the argument, that the relationship substantially of mortgagor and mortgagee still exists between the plaintiff and the defendant Walston, it is clear that the plaintiff as mortgagee cannot recover the crops which are the subject of this controversy. These crops were grown by the mortgagor while in possession, and were actually severed before the entry of the mortgagee. In Killebrew v. Hines, 104 N. C., 182, it was held that the mortgagee is not the owner of the growing crops of the *9 mortgagor in possession, and that if they are severed before entry, the mortgagee cannot recover them. It is true that it was suggested in the opinion, that, as between the parties, the crops, although severed, might, before removal, be charged in equity upon the insolvency of the mortgagor and the inadequacy of the land as security, but it is plain that equity would never extend such relief to the prejudice of third persons who have acquired interests in the crops, and especially as against one like the defendant Guirkin, who has not only, it seems, acquired the -legal title by virtue of his chattel mortgage and actual severance of the crops, but also a superior standing in equity, by reason of his having -supplied the means necessary for the production of the same. So, even independent of the Act of 1889, ch. 476 (which it is argued applies only to formal agricultural liens), the plaintiff could not invoke equitable relief. Carr v. Dail, 114 N. C., 284. In this case, however, no equitable relief is asked, and even as against the mortgagor, it could not be granted, if prayed for, as there is nothing in the case to show the insolvency of the mortgagor, or the inadequacy of the security. The plaintiff, then, relying strictly upon his alleged legal rights, could not recover as against the mortgagor; a fortiori, he could not recover as against the defendant Guirkin. On the other hand, if we treat the case as if the relationship of the mortgagor and mortgagee had ended, the plaintiff would be equally unfortunate, as it is well settled that when one in the adverse possession of land severs the crops before recovery, the owner of' the land cannot assert any legal claim thereto. Faulcon v. Johnston, 102 N. C., 264. His remedy, pending an action of ejectment in case of insolvency, is by injunction or the appointment of a receiver, who collects the rents, in order that the right to the mesne profits may not be defeated. Killebrew v. Hines, supra. No such interlocutory relief was invoked by the plaintiff, and even if granted, it would not, for the-reasons above given, have affected the rights of Guirkin. *10 This is a purely legal action, but, even if equitable relief had been prayed for, the plaintiff, as we have seen, could not have recovered. The conclusion of his Honor, therefore, in any point of view, was correct, and the judgment must be Affirmed.