Dail Bro. v. . Freeman

Ashe, J. (after stating the facts). There is no error in the ruling of His Honor in refusing the instruction asked by the plaintiff, nor in rejecting the issue tendered by him, for the reason they were not such as were warranted by the pleadings or the facts of the case. Nor are we able to discover any error in the instruction given by His Honor to the jury, which could have operated to the prejudice of the defendant. The defendant claimed the land on which the two bales of cotton were raised in 1878, by a sheriff’s deed made to him, by virtue of a sale of the land under an execution on the 30th of *355 August, 1878, issued by leave of the court upon a judgment rendered the 10th of January, 1874. The defendant then acquired the interest, whatever it was, of W. F. Williams, the defendant in the execution, and this would have given him the right to the rent of the land for that year accruing after the sale, or, at least, the right to recover for the use and occupation for that term, unless there was something done by the defendant in the execution previous to the sale which prevented his said rights from attaching. The purchaser under an execution takes all that belongs to the debtor and nothing more; a. greater estate or interest than the debtor owned cannot be conveyed. Herman on Executions, sec. 360. hiere, Hart-was the vendee of Williams, the defendant in the execution, by a parol contract of purchase — he had paid a part of the purchase money, and was put into possession of the land by Williams, and continued to hold possession by his consent to the time of the sale by the sheriff. He was only the tenant at sufferance of Williams, who had the right to deprive him of the possession at any time upon a reasonable notice. But he did not exercise the right, and until he should see proper to do so, Hart was rightfully in possession, and being so, he executed in March, 1878, the two agricultural liens upon his crops to be raised on the land during the year 1878, which were duly registered, and thus gave notice to everybody. Williams the vendor, therefore, had notice, and not objecting, his assent to the lien given by Hart must be presumed. Hart then, so far as Williams was concerned,, had the right to give the liens, and they conveyed a vested right to the plaintiffs in the crops to be made during the year 1878, as fully and effectually as if they had been given by Williams himself; and if they had been given by him, would the purchaser of the land at the sale under execution divest the rights of the plaintiffs acquired by the agricultural liens? We are of the opinion, it would not. It is true where there is a judgment lien upon land, *356 a sale under execution issued upon sucli judgment will pass to the purchaser all the rights and interests of the defendant in the execution, and when he obtains the deed of the sheriff, it will relate to the rendition of the judgment, so as to defeat all conveyances and incumbrances upon the land subsequently made. But this relation has no other effect than to defeat such aliena-tions and incumbrances, made subsequent to the rendition of the judgment, upon the land itself. It has no application to the products or profits of the land arising or accruing in the interval between the judgment and the sale. If that were so, the purchaser at an execution sale under a judgment several years old might receive the rents accruing during all that time; but the reason he cannot do so, is because the judgment lien on land constitutes no property or right in the land itself: A judgment creditor has no jus in re nor jus ad rem in the defendant’s land, but a mere right to make' his general lien effectual by following up the steps of the law, and consummating his judgment by an execution and sale of the land. Freeman on Judgments, see. 338, and Herman on Executions, seo. 335; And the only effect of the relation of a sheriff’s deed to the judgment is to preserve and make effectual the lien of the judgment under which the execution sale was made. Freeman on Executions, seo. 333. Eor any other purpose his deed only relates to the day of sale. It vests the title of the land in the purchaser only from the time of the sale. Davidson v. Frew, 3 Dev., 3; Hoke v. Henderson, Ibid., 12. And only such interest as the defendant in the execution has in the property levied upon and sold, whether real or personal, passes by the sheriff’s sale. Homesley v. Hogue, 4 Jones, 481. Hence, although the purchaser, at execution sale, acquires the right to the rents accruing at and after the time of sale, by purchasing the reversion when the land is in possession of a lessee, if the defendant in the execution has no right to them at the time of sale, the purchaser acquires no right. Here, Williams had no right to the rents or crop, nor claim for use and occupation, at the date of the lien or at the time of the sale. He had *357 no such interest as could be passed by the sale. Hart was his vendee, it is true, only by a parol contract; but it was still a valid contract, unless Williams should see proper to make it void by setting up the statute of frauds. Until that should be done, Hart was in possession lawfully as vendee, -and was his tenant at sufferance, and as such was entitled to the rents and profits of the land. Wellborn v. Simonton, 88 N. C., 266; Pearsall v. Mayers, 64 N. C., 549. If he was entitled to the rents, he was, of course, entitled to the crops, and consequently had the right to give a lien on them for advances to enable him to make them. It is held that a purchaser at an execution sale is not, as a general rule, entitled to the crops nor the fixtures on the land if the premises be in possession of a tenant. Such tenant has the right to gather the crops and remove the fixtures, but it is otherwise when the crop is raised by the defendant in the execution' — Her man ori Execution, -§347. But even in that case the principle applies only to the crops which have not been severed before the sale; when there has been a severance before the sale, the crops do not pass to the purchaser. This distinction is maintained in several decisions of the Supreme Court of Pennsylvania. In Stambaugh v. Yates, 2 Rawle, 161, where grain growing had been sold under execution against the debtor, before the sale of the land upon a ven. ex. it was decided that severance was implied, and that the grain did not pass with the land; and in Myers v. White, 1 Rawle, 353, a mortgagor assigned all his property for the benefit of his creditors, it was held that the growing grain passed to the assignees, and not to the purchaser at sheriff’s sale of the land sold by virtue of the levari facias, because the assignment amounted to a severance. To the same effect are Porche v. Bodin, 28 La. An., 761; Brothers v. Hurdle, 10 Ired., 490. Upon the principle decided in these eases, the agricultural liens effected a severance of the crops and they did not pass to the purchaser, and this conclusion is strongly supported by the evident policy of our Legislature to encourage agriculture, man *358 ifested by numerous enactments on the subject, notable among which are sections 1749 and 1799 of The Code. Under the provisions of these sections, if Hart was the tenant of Williams at the time of the sale, the case presents a somewhat different aspect. It will be noticed that there was a conflict of testimony as to whether Iiart ever attorned to Freeman, the purchaser at the execution sale. Freeman offered evidence tending to show that he did, and the plaintiff on the other hand, offered the testimony of Plart, who denied that he ever became the tenant of Freeman, but testified that he surrendered his contract of purchase before the sales and became the tenant of Williams, the defendant in the execution, and the jury have found the issues in favor of the plaintiff’; the inference is they found that Hart was the tenant of Williams. If so, then section 1749 applies, which reads: “Where any lease for years of any land for farming, on which a rent is reserved shall determine during a current year of the tenancy, by the happening of any uncertain event determining the estate of the lessor, the tenant, in lieu of emblements, shall continue his occupation to the end of such current year, and shall then give up such possession to the succeeding owner of the land, and shall pay to sucia succeeding owner a part of the rent accrued since the last payment became due, proportionate to the part of the period of the payment elapsing after the termination of the estate of the lessor to the giving up such possession, and the tenant in such case shall be entitled to a reasonable compensation for the tillage and seed of any crojas not gathered at the expiration of any current year, from the person succeeding to the possession.” It will be observed that this provision accords with the doctrine laid down in. Herman on Executions, supra, that the purchaser would not be entitled to the crops but only to a portion of the rent. If Hart, then, at the time of the sale, was the teiaant of Williams, he had the right to hold possession to the eiad of the year, and ■ Freeman would be entitled to the rents accruing only after the sale. But the provisions of this section must be construed in connection with and in subordination to those of section 1799, *359 where it is provided that, “ If any person shall make any advance, either in money or supplies, to any person who is engaged in, or about to engage in the cultivation of the soil, the person so making such advance shall be entitled to a lien on the crops which may be made during the year, upon the land in the cultivation of which the advances so made have been expended, in preference to all other liens existing or otherwise, to the extent of such advances This provision would seem to override the purchaser’s claim for rent after his purchase, and his right to rent after that time would be subject to the claim of him who held the liens. After a careful review of the subject, our conclusion is there ivas no error in the ruling and judgment of the Superior Court, and the judgment of that court is therefore affirmed. No error. Affirmed.