Woodlief v. . Harris and Parham

Smith, C. J. (after stating the facts). We concur in the opinion that the deed is ineffectual under the statute, and for the reason given. The advancements must he to aid in the making of the crops to which the lien attaches. Patapsco Guano Co. v. Magee, 86 N. C., 350; Reese v. Cole, 93 N. C., 87. But we differ from the Judge, as to the efficacy of the deed as a common law mortgage. In Harris v. Jones, 83 N. C., 317, it was decided that the words “convey a lien upon each and every of said crops to be cultivated and made upon the said lands,” were sufficient to constitute a mortgage. In the view of a Court of equity, such is the substantial effect of a conveyance of the legal title as the security for an assumed obligation or liability. Nor is it necessary that there should be a provision for taking pos *214 session of crops in case of default, since the lien may be enforced through the Courts, and possession is only required to-enable the mortgagee to enforce it himself and without judicial assistance; The other objection, that no place is described on which the crop is to be made, is not sustained by the deed. It gives a lien on all crops raised on lands owned or rented by me during-the present year. It was executed late in February, and the special verdict describes the three bales of cotton converted by the defendants, as having been “raised by the mortgagor Pearce, on his farm in Franklin county, during the year 1883.” The mortgagor then did have a farm of his own, and the cotton covered by the lien grew upon and was gathered from it. The conjunction “or” couples the owned and rented land, and the conveyance distributively applies to each and both. Then the grant was of such a crop as was capable of transfer, and to-which the operative words would attach, as soon as it came into existence, under repeated rulings of this Court, of which the-case of Atkinson v. Graves, 91 N. C., 99, furnishes an illustration. But this is uot adverse to our present ruling, as the learned Judge who tried the cause in the Superior Court interpreted it. There the description was “ of one bale of good middling cotton,, that I may make or cause to be made, or grown, during this year,” &c., without designating the land upon which it- was to be grown ; and this was properly held to be too vague to pass-an interest in any cotton, and was not within the compass of the restricted rule, that permits a mortgage upon an unplanted crop,, which must or may have a future potential existence, as the offspring or increment of a corpus, in which the mortgagor has-property or a right to possess, as applied to the fruits of the earth. Thus far the general rule is enlarged, which permits to be conveyed only what then existed. There is error, and the judgment must be entered upon the special verdict for the plaintiff. Error. Reversed.