Sessoms v. . Tayloe

CoNNOR, J., .after stating the case: It is settled by numerous decisions of this Court that, under our system of procedure, when the action is for the possession of personal property, or the value thereof, in the nature of the old action of detinue, the Court will in proper cases treat the action as for foreclosure of liens, and adjust the rights of the parties, either upon the evidence or, if necessary, by a reference to state an account. In Cotton v. Willoughby, 83 N. C., 75, Smith, G. J., said : “If the plaintiffs recover, they will hold as trustees, and, as all interested in the fund are before the Court, we see no reason why in the present proceedings the mortgage may not be foreclosed, the equities involved adjusted and the whole matter finally adjudicated in the action.” In Parker v. Brown, 136 N. C., 280, an action in several respects like this, we said: “If she had a legal right, of which the defendant has deprived her, the Court will find and administer a remedy corresponding to her right.” What, therefore, was the plaintiff^ right in respect to the crop ? To answer this question it is necessary to ascertain what right her husband or his personal representative had, and this involves the inquiry, What relation existed between the defendants and Sessoms in regard to his occupation of the land during the year 1907 ? The defendants having *372 reserved a life estate in the land, we do not perceive bow the deed of 2 February, 1906, affects the legal status of the parties. The defendants were unquestionably the- owners aud in possession ■ of the land. Sessoms entered and occupied it by their permission. lie had no right, under the deed, to enter or cultivate the land. The testimony shows him to be an occupant, .rather than a tenant. No rent was reserved. The crop, when made, was his property. Defendants’ wit-mess, Joseph Sessoms, the father of J. P. Sessoms, says: “I saw J. P. Sessoms work the crop. He was in charge of the place. * * * He was in charge of the land and they all lived there. I went there (to help work) on his account partly, and partly on account of all of them. • He was my son and I did not want to see the croj) ruin.” The defendants took from Sessoms a lien “on all the crops which may be made by me upon said land during said year,” describing it as the land of the defendants. The lien contains the provision: “And if I fail to pay the amoimt so advanced by the time specified, the said Anne Eliza and Melissa Tayloe shall have power to take possession of said crops and sell the same, the proceeds to be applied to the payment of said advances, and the surplus, if any, to J. P. Sessoms.” This lien was introduced by defendants, but no evidence ivas offered showing that any amount was advanced by them. We do not find any evidence of a rent reserved by defendants, or indication of a lease of the land. It would seem that Sessoms was an occupant of the land for the purpose of cultivating it. He was liable to an action of assumpsit, for a reasonable amount, for use and occupation. “In such cases the law will, imply a promise to pay compensation for the use and occupation.” 2 Taylor Landlord and Tenant, sec. 636. By section 1986 of Revisal it is provided that, “Whenever any person shall occupy land of another by the permission of such other, without any express agreement for rent, * * * the landlord may recover a reasonable compensation for such *373 occupation.” AVhether tbe amount to be iecovered “for use and. occupation” is subject to tbe provisions of section 1993, Revisal, that “when lands shall be rented or leased by agreement, written or oral, for agricultural purposes,” etc., tbe crop shall be deemed to be vested in tbe lessor, etc., is not clear. Tbe statute (Revisal, sec. 1980) was enacted in 1850, because the Court, following tbe English decisions, bad held that assumpsit for use and occupation would not lie unless there was an express promise to pay therefor. Anonymous, 2 N. C., 485 (559); Long v. Bonner, 33 N. C., 27. There is much' evidence in this record indicating that defendants did not intend to charge Sessoms for “use and occupation,” but that, for failing to support and take care of them, the deed should be “null and void.” If the right to sue for “reasonable compensation” does not give any lien under section 1993, the right of the defendants is confined to an action against the administrator of Sessoms. As the interest of the plaintiff, under the allotment of her year’s support, is confined to $50, she is not further interested in the right to the crop, as between the personal representative and the defendants, than the recovery of so much as will pay her the sum of $50. Assuming that, as between the parties to this action, the defendants are entitled to retain so much of the crop, under section 1993, as will pay the amount found to be due for use and occupation, it is manifest that the remainder belonged to the personal representative of Sessoms, subject to defendants’ claim under the lien for amounts advanced to him and the widow’s year’s support. There was no evidence that any sum had been advanced. The plaintiff asked his Honor to instruct the jury that, as the. defendants had offered no evidence of any such advances, they could not hold any.part of the crop under the lien. AVe think that this instruction should have been given. The plaintiff further requested his Honor to instruct the jury that, even if the relation of landlord and tenant existed, in the absence of any *374 evidence of the value or amount of tbe rent, the defendants cannot hold any part of the crop for rent. Taking the view most favorable for the defendants, the plaintiff was entitled to this instruction. Other instructions were asked and refused, which are not necessary to be considered. Upon the whole evidence the plaintiff was entitled to maintain her action, certainly to the extent of recovering so much of the crop as was necessary to pay her $50 included in the allotment. We can see no good reason for ordering a new trial, with the delay and expense incident thereto. The small amount allowed by the law to the widow and her young children to provide for their support during the first year following the loss of the “breadwinner” should not be withheld from them by vexatious and expensive litigation.- It is apparent from the entire evidence that the value of the crop, made largely by the labor of the sick husband, is sufficient to pay the widow her $50'and discharge the lien, which cannot exceed $121 and reasonable compensation for use and occupation. The defendants have wrongfully withheld it from her. Let the judgment be so modified that the plaintiff will retain from the proceeds of the crop seized in this action $50. She will out of the amount remaining pay the costs incurred in the Superior Court and the costs of this Court. The defendants will have judgment for the balance. Modified and Affirmed.