J. B. Nichols & Bro. v. Speller, 120 N.C. 75 (1897)

Feb. 1897 · Supreme Court of North Carolina

120 N.C. 75

J. B. NICHOLS & BRO. v. ANDREW SPELLER.

Agricultural Lien — Chattel Mortgage — Agricultural Supplies.

1. One who advances money or supplies, on an agricultural lien, for making a crop, is not bound to see that they are used on the farm, his duty being discharged by furnishing them.

2. An instrument which gives a lien on a crop for supplies to be furnished in making a crop and also conveys personal property as additional security, with the ordinary powers of sale, is valid both as a chattel mortgage and an agricultural lien and, as between the parties, in the absence of fraud and compulsion, the lien attaches for dry goods, shoes, tobacco, powders, snuff and candy, without a showing that such articles were actually used in making the crop.

AotioN of claiM and delivery, tried before Hobinson, L., at Fall term, 1896, of Beetie Superior Court. A jury trial was waived, and the court found the facts. The plaintiffs introduced a lien bond from Andrew Speller to plaintiffs, as follows: “Whereas, J. B. Nichols & Bro. have this day agreed to make advances of supplies and money to Andrew Speller during the year 1893, not to exceed $750, for the cultivation of crop upon the following described land [describing the land]: Now, therefore, in consideration of the premises, I promise to pay the amount advanced me on or before the first of November, 1893, and do hereby give to Nichols & Bro. a lien upon all the crop which may be made by me on said land during the year, to the extent of the advances made, in accordance with the statute in such case made and allowed, and if I fail to pay, by the time specified, Nichols & Bro. shall have power to take possession of the crop, sell the same, and apply the proceeds to the payment of the advances, and the surplus, if any, to be paid to Andrew Speller. And, for the .further securing of the advances, I do hereby give and convey to them these articles of personal property: One black horse mule [and other mules described, Cart, and wagon], and all other personal property, of every bind, I now possess, but on this special trust;: that, if I fail to pay in pursuance of said agreement they may sell the property, or so much thereof as may be necessary, for cash, at public auction, first giving twenty days1 notice at three public places in Bertie county, of the time and place of sale, and-apply the proceeds, etc. It is further agreed that, if Andrew Speller shall from any cause fail to cultivate the crop or do any act the effect of ■which would defeat the objects of this conveyance, then Nichols & Bro. shall not be obliged to make any further advances, and the indebtedness already incurred shalL become due and collectable at once, in the manner herein provided.” Dated March 24, 1893, and signed and sealed by Andrew Speller. The plaintiff also put in evidence an itemized account, amounting to $782.68, and credited with $623.78, leaving a balance due to Nichols & Bro. from Andrew Speller of $158.90 J. B. Nichols testified that he was a member of the firm of J. B. Nichols & Bro., and that the articles charge! in the account were furnished Andrew Speller under the contract (set out above). “I •made the bargain with him, and the goods were scld under the contract. He admitted to me that he owed -me a'bal-, anee of $158 when I exhibited, the account to him. The whole amount was advanced. He admitted the account, and asked for more time on it. Outside of our agreement (as set out above), nothing was said at the time of getting the various articles charged in the itemized bill. He called for the articles, and got them at the prices charged, which were the usual prices. He was not my tenant or the firm’s tenant; farmed on his own land.” M. L. Spruill testified, after objection on the part of defendant, which was overruled, and an exception noted: “The articles read over to me [counsel having read over the underscored articles, which defendant claims were not advancements] are necessary supplies for agricultural purposes, [The articles underscored are as follows: Flannel goods, calicoes, homespun, buttons, spool cotton, sugar, dipper, merchandise, shoes, coffee, powders, salt, snuff, flour, cakes, candy, hose, lye, soap, hat, cap, velvet, homespun, and articles of a similar character.] I am a farmer of several years’ experience, and I live near defendant.” Tne items of the account underscored, amounting to the sum of $89.20, were objected to by defendant, on the ground that they were not agricultural supplies and advances. It was admitted that all of the items were sold and furnished after the execution of the lien bond, except the sum of $56.14, which was anterior to the execution of said bond. In apt time, defendant asked in writing the following instructions: “That in order for plaintiff to rcover for any goods, shoes, tobacco, etc., they must show affirmatively that such arti cles were used for the purpose of making a crop.” “That plaintiffs have nor shown affirmatively that such articles were thus used, and that they cannot be allowed the plaintiffs in this action.” .“That in order for plaintiff to recover for the sugar, coffee, etc., they must show affirmatively that such articles were reasonable and necessary for use of defendant to enable him to make the crop.” “That plaintiff has not shown this, and is not entitled to recover for such items in this action.”

All of these instructions were refused, and defendants excepted. There was judgment for the plaintiffs and defendants appealed.

Mr. Francis D. Winston, for plaintiffs.

Messrs. Martin <& Peebles, for defendant (appellant).

Douglas, J.:

There are three exceptions relied upon by the defendant appellant, all to the refusal of the court below to give special instructions prayed by the defendant. These instructions practically depended upon the single question whether certain articles, such as dry goods, shoes, tobacco, powders, snuff and candy, were .or could be covered by an agricultural lien, under section 1799 of the Code.

The lien in question not only gave “a, lien upon all the crops,” to be made by the defendant upon the land in question, with full power to take and sell upon default; but also in apt and effective terms conveyed to the plaintiff, as further security for such advances, four mules and other personal property, vs ith the.ordinary powers of sale. This paper was therefore a valid chattel mortgage as to the personal property, and equivalent to a mortgage as to the crops. Rawlings v. Hunt, 90 N. C., 270. There is no allegation of fraud, compulsion or other undue influence in the execution of the lien, or the purchase or selection of the goods. They appear to have been bought at the usual prices by the defendant, and the debt therefrom resulting admitted by him. The appellant is the original lienor, and the original parties to the lien are the only parties before this court. Under these circumstances, we see no reason why the defendant could not purchase such goods as he saw lit, and charge his own property with the payment of the debt. Section 1799 of the Code was not intended simply to permit a person to give a lien upon his crop fbr advances; but also to give such a lien a ^preference to all other liens existing or otherwise to the extent of such advance.” Therefore, it should be strictly construed when the rights of other creditors intervene. Even where such claims do exist, it has been held that the mortgagor must determine his own needs in conducting his farm, and that his acceptance must be deemed conclusive between the parties, and not less so upon the claim of a subsequently derived title, and that the plaintiff was not bound to see that the property was used on the farm — his duty being discharged by furnishing it. Womble v. Leach, 83 N. C., 84. In the leading case of Clark v. Farrar, 74 N. C., 686, this court, holdingthat an agricultural lien, valid upon its face, was void because it did not speak the truth, says that the deed may be good between the parties to it, though not good against a purchaser for value. We are not aware of any case wherein this court has held the contrary, between the original parties. As between them, even registration is not essential. Gay v. Nash, 78 N. C., 100, cited and approved in Reese v. Cole, 93 N. C., 87. The restrictive provisions in section 1799 of the Code are manifestly for the security of creditors and others dealing with the debtor. Reese v. Cole, supra.

If there were any elements of fraud or,compulsion in this case, our judgment might be different, but as it is presented to us we can see no error. Whatever may be our sympathies, we cannot undertake to set up over parties, sui juris, a quasi guardianship repugnant to our institutions and dangerously infringing upon tha jus disponendi inseparable from ownership.

Affirmed.