Perry v. . Bragg

Avery, J. after stating the ease: The plaintiffs offered in evidence a chattel mortgage, executed to them by one Ira N. Purkerson, which had been proven before the Clerk of the Superior Court of Franklin County, and to which his certificate, attested by seal, had been affixed in proper form. The defendant excepted to the ruling of the Court that the mortgage was competent, on the ground that in the. registry of it in Granville County the seal of the Clerk was not recorded. In Freeman v. Hatley, 3 Jones, 115, the Court, after distinguishing the cases where an examination is taken out of the State, and where there is a special requirement in the statute as to the record of such probate, say that the statute then in force (Rev. Code, chapter 37, § 1) did “ not require the fact of probate to be registered.” Judge Pearson, for the Court, pointed out the practice where the deed was proven in the County Court, in the following language: “The regular course is, when a deed is proven or acknowledged in the County Court, to make an entry of the fact in the minutes, and for the Clerk, by way of identifying the deed, to endorse on it ‘ proved and ordered to be registered ’; but there is no statute which requires the register to put the endorsement on his books, and if the original be lost, we suppose the most plenary proof would be a certified copy from the register, and also a certificate of the Clerk of the County Court that the deed had been proved and ordered to be registered.” The Court say further, in substance, that where the certificate and fiat were made by a Judge of the Supreme *164 Court, not the Superior Court, there is no secondary evidence of it if lost, but in that event the maxim ovinia presumunter rite acta comes to the aid of the Clerk’s endorsement. The Code, § 1245, is, in so far as it bears upon our case, in the same language as chapter 37, section 1, Rev. Code, construed by the Court in Freeman v. Hatley, while another statute (The Code, 112 [3] ) requires the Clerks of the Superior Courts to record in their general order books copies of all fiats made by them. This construction of the statutes finds support in other adjudications of this Court. Love v. Harbin, 87 N. C., 249; Johnson v. Pendergrass, 4 Jones, 480. We do not commend the practice of omitting the certificate and fiat when the deed is recorded by the Register of Deeds, because a full record will prove convenient and useful in case the original should be lost; but it would often prove hard measure if the statutory requirement were made more stringent, or the interpretation of the law now in force were less liberal. If it is not essential that the Clerk’s certificate should be entered of record at all, it is certainly not material that a seal should have been omitted in the attempt on the part of the register to record it with the deed. The case of Williams v. Griffin, 4 Jones, 31, cited by the defendant, was one where a deed which had been registered, but had no endorsement of a probate on it, not even that declared sufficient in Freeman v. Hatley, supra (“ proved and ordered to be registered”), was held not competent as evidence, because it did not appear to have been proven. In Todd v. Outlaw, 79 N. C., 235, it appeared that an attempt had been made to prove a deed before a Justice of the Peace of Ulster County, New York, whose official character was sustained by a certificate of a Clerk of a court of record of the same county. The Judge of Probate of Bertie County had added his fiat to this proof, and the mortgage deed had been registered. The case of DeCourcy v. Barr, Busbee’s Eq., 181, is one of those distinguished by PeaesoN, J., in Freeman *165 v. Hatley, supra, because the deed was proven by a commissioner outside of the State. The mortgage provided that “ if by the 15th day of October, 1888, the aforesaid indebtedness has not been discharged by the proceeds of the sale of said crops, or otherwise, then the party of the second part is authorized to take possession of said property and sell the same, or so much thereof as will satisfy the.amount then due and all costs and expenses in any way incurred by said seizure and sale. But if said indebtedness shall be paid off and discharged by the 15th day of October, 1888, then this conveyance to be null and void.” The plaintiffs advanced to Purkerson the sum of thirty dollars at the time of the execution of the deed, and subsequently, from time to time, twenty dollars in addition, which sum it is admitted is now due under the contract entered into by him by virtue of the mortgage. But the defendant contends that in fixing October 15 as the earliest time at which a seizure could be made, the parties evinced a purpose that the mortgagor should sell the crop and pay out the proceeds, and that the defendant was safe in assuming, after the failure of plaintiffs to seize before November, 1888, that the mortgagor was selling to him under the privilege given in the mortgage for the purpose of applying the proceeds to the payment of the debt. We think the contention of defendant is utterly untenable. We know no principle upon which a mortgagee can be fairly deemed to have waived and surrendered his lien upon a crop by a failure to enforce it by seizure for thirty days' after his debt becomes due and his lien enforcible; nor can we concur in the very liberal construction of the terms of the contract, which would have left the mortgagor at liberty to sell all crops maturing before October 15, 1888, and appropriate the proceeds of sale to his own use. In the absence of any agreement as to the time for enforcing a crop lien as *166 between landlord and tenant, it is proper that a crop should be divided as soon as it can reasonably be done after any portion of it is gathered without awaiting the gathering of he whole (Smith v. Tindall, 107 N. C., 88), though the landlord can bring claim and delivery before the time fixed for division, unless the tenant is about to remove or dispose of or abandon the crop. Jordan v. Bryan, 103 N. C., 59. By extending indulgence to a debtor until such time as some portion of his crop would in the ordinary course of husbandry be matured, the creditor cannot justly be held by implication to release his lien upon the crop conveyed to secure him. There is No Error.