Wheless v. . Edwards

Adams, J. The controversy is simplified by the admission of the parties, as stated in the charge, that if the relation of landlord and tenant existed between Edwards and Jones on 5 March, 1923, the cotton in question is -the property of the defendants and if such relation did not exist the cotton is the property of the plaintiff. The answer to the first issue depended upon a determination of this question. In reference to the issue his Honor instructed the jury that the burden was on the plaintiff to prove by the greater weight of the evidence that Jones was in possession of the land under a contract of purchase. This was correct; but to make good his contention it was not necessary for the plaintiff to show that the purchaser had received a deed for the land. If Jones held possession under such contract he did not hold possession as tenant. Edwards testified he had agreed to sell him the land and raised no question as to the sufficiency of the contract on the ground that it had not been reduced to writing. The deed, if not delivered until 4 December, was in fact signed and acknowledged by the defendants on 1 January, 1923. We do not regard the charge as susceptible of the construction that the execution and acknowledgment of the deed necessarily implied the consummation of the purchase. This evidence was competent on the question whether Jones had taken possession of the land as vendee and was evidently admitted for this purpose; for the páragraph referred to in the fifth exception contained merely a statement of the plaintiff’s contentions. It seems to be apparent, then, that exceptions 1, 2, 4, 5, 8, 9, 10, 11 should be overruled. Killebrew v. Hines, 104 N. C., 182; Warrington v. Hardison, 185 N. C., 76; C. S., 2480, 2481. The plaintiff introduced a part of the defendant’s answer in which the' defendants admitted they had applied the value of the cotton received from Jones as the cash payment for the purchase of the land, and the defendant objected on the ground that the plaintiff did not offer the remainder of the allegation, “and then and not before the deed and deed of trust were delivered by these defendants to the office of the register of deeds of Franklin County for registration, and only then did the contract of purchase go into operation.” The admission of the evidence is in accord with these decisions: White v. Hines, 182 N. C., 275, 279; Modlin v. Ins. Co., 151 N. C., 35, 39; Hockfield v. R. R., 150 N. C., 419; Stewart v. R. R., 136 N. C., 385; Hedrick v. R. R., ibid., 510. *460 Tbe defendant excepted to tbe instruction tbat “tbe delivery on tbe papers would have nothing to do with tbe case.” They were delivered 4 December, 1923. Considered as a detached sentence this instruction may not be strictly accurate; but when considered in relation to other portions of tbe charge it does not constitute reversible error. It is obvious, we think, tbat tbe judge used tbe expression in emphasizing tbe instruction tbat under tbe admission of tbe parties tbe cardinal question was tbe relation existing between tbe defendants and Jones at tbe time tbe crop lien was executed; and this was about nine months before tbe deed was actually delivered. Tbe other exceptions present no sufficient ground for a new trial. No error.