Hahn v. Heath.

Clark, J. Tbe plea in bar being overruled, tbe defendant noted bis exception, and from tbe final judgment upon tbe referee’s report be appealed. That exception being tbe only one presented, tbe plaintiff moves to dismiss the appeal upon *28 the ground that it was waived by not appealing at the time. But the noting the exception in the record shows that it was not waived. It is true that, upon overruling the plea in bar, the defendant might have appealed at once. Smith v. Golds boro, 121 N. C., 350, and cases there cited. This, however, is a privilege, and the defendant does not waive his right by not prosecuting his appeal at that juncture, provided he preserves his right to have the action of the Coui't reviewed by having his exception noted in the record. Austin v. Stewart, 126 N. C., 525, 527. Indeed, -if an .appeal had then been taken, but not prosecuted, it would be treated as an exception, and the matter of appeal reviewed upon appeal from the final judgment. Alexander v. Alexander, 120 N. C., 472; Luttrell v. Martin, 112 N. C., 593. But, while the motion to dismiss must be denied, we find no merit in the exception to overruling the plea in bar. The mortgage Avas excuted on the 23rd of November, 1896, upon “all the crops of cotton, corn, and other products to be raised” on certain farms, sufficiently described, to secure a note falling due on the 15th of October, 1897. There can be no uncertainty in this which would vitiate the mortgage; for this language calls for the crops to be raised thereafter, not those already matured. Wheat might be sown that Fall, but it Avoukl not be raised till the following’ year, and cotton and corn are planted in the Spring. Therefore the crop to be harvested in 1897 is clearly intended. The reasoning in Taylor v. Hodges, 105 N. C., 344, is exactly in point, and is not varied by the fact that there the mortgage on the crop Avas executed in April to secure a note falling due in October. Nor is this mortgage void, under Loftin v. Hines, 107 N. C., 360. It is there held that a mortgage on the crop other than of the year current is invalid, but *29 tbe context shows that by this is meant “tbe crop' next following tbe conveyance” (Wooten v. Hill, 98 N. C., 52), wbicb case and language are cited in Loftin v. Hines as tbe authority upon wbicb it rests. If it be contended that tbe mortgage here extended to tbe crops of all future years because no year is mentioned, then Loftin v. Hines is, indeed, authority for tbe plaintiff, since it bolds, that, even though future years are expressly named, tbe mortgage, while invalid as to them, is good as to “tbe crop next following tbe mortgage.” Affirmed.