Weil v. Flowers

MerkimoN, C. J.: The fitst exception must be sustained. The description of the crops in the agricultural lien as “ All my entire crop now growing, or to be grown the present year on my own land,” designated with sufficient certainty the land and also the crops intended to be conveyed. They could, by such description, be ascertained. The other words “or on any other land” were too indefinite, because they pointed to no particular lands. The lands of the maker of the lien, at the time he executed it, could be seen and known—those that he might cultivate, could not. Woodlief v. Harris, 95 N. C., 211; Gwathmey v. Etheridge, 99 N. C., 571; State v. [217] Logan, 100 N. C., 454; Brown v. Miller, 108 N. C., 395; Rountree v. Britt, 94 N. C., 104. We are also of opinion that the Court should have instructed the jury that the plaintiffs had the right, by virtue of provisions of the agricultural lien, to apply the money, the proceeds of the cotton or other property embraced by it, after paying the debt for advancements, to the payment of the note therein specified. The agricultural lien was not simply such; it took on and possessed the qualities of a chattel mortgage as to the note, and expressly provided that any surplus above the payment for advancements should be applied to the payment of the note, so far as the same might be adequate. Such provision might be made in such lien. An agricultural lien may contain a mortgage provision. Rawlings v. Hunt, 90 N. C., 270. The subsequent chattel mortgage to secure the note for $130 mentioned, did not have the effect to change or modify the provision for paying the note above referred to. Though this mortgage embraced the same property that the lien embraced, it was made subsequent and subject to the lien and all the provisions therein contained, in the absence of any modifying provision. It did not in terms, or by implication, modify the lien. As to the large note specified in the latter, it was a second mortgage subject to the first. The mere fact that the plaintiffs took the second mortgage did not, in legal effect, modify the provision for the large note in the first one. There is nothing in the second mortgage that shows such purpose; nor was there any evidence of agreement, by parol or otherwise, to modify the first mortgage provision in the lien. The Court ought not, therefore, to have told the jury that the defendant had the right to direct the application of the money to the note embraced by the second mortgage, and they might find that he gave such instruction to the plaintiff. The evidence went to prove that [218] the plaintiffs had the right to apply the payment made as above stated, and there was no evidence to the contrary. There is, therefore, error. The plaintiffs are entitled to a new trial. Error.