#### W. F. GRUBBS v. CHARLES STEPHENSON.

Trial — Verdict—Evidence—Claim and Delivery — Forthcoming Bond — Judgment.

1. In the trial of an action against an alleged lessee for the possession of crops to satisfy advances made by plaintiff, the following issues were submitted: (1) Did defendant rent land of plaintiff as alleged in the complaint ? (3) Did crops seized in this action grow on said lands ? (3) If so, did the plaintiff make advancements, as is alleged, to said defendant? The jury answerd in the negative to the first two issues and in the affirmative to the third ; Meld, that the response to the third issue is not contradictory of the answers to the first two.

3.Where, in the trial of an action by one claiming to be the lessor of land against the alleged lessee for the possession of the crops to satisfy advances, it appeared in evidence that the plaintiff’s name was not in the lease when signed by the defendant, it was competent for the latter to testify that he had rented no land from the plaintiff, such testimony being admissible not to contradict the paper writing but to negative any verbal contract of renting, if the jury should find that plaintiff’s name was not in the lease.

3. Where, in such ease, the defendant testified that he had rented the land from S., who intei-vened in the action to claim the crops as landlord, it was competent to corroborate such testimony by producing the lease from the latter.

4. The Code does not favor circuity of actions, and the gist of the bond required of the plaintiff in claim and delivery proceedings being the return of the property taken or its value, it is of no concern to such plaintiff whether the judgment directs it to be returned to the defendant or to an intervenor who claims it by assignment from the defendant.

5. A judgment on the forthcoming bond in claim and delivery proceedings should*be in the alternative for the return of the property, or, if that cannot be had, for its value with damages.

*67Civil aotioN, commenced by W. E. Grubbs against Charles Stephenson, before a Justice of the Peace, under the Landlord and Tenant Act, to get possession of crops alleged to have been raised on land rented by said Stephenson from J. W. Jordan and W. F. Grubbs. Judgment was rendered against Grubbs, who appealed to the Superior Court and gave the undertaking reqiiired by law to enable him to reclaim possession of the property, with one Rogers as surety. After the undertaking was executed and the appeal probated, M. E. Stancill intervened claiming that he was the landlord of Stephenson and that the crops belonged to him to satisfy advances made by him to Stephenson. Th'e action was tried on such appeal, before Melv&r, </., and a jury, at Spring Term, 1895, of NORTHAMPTON Superior Court. The defendant denied renting the land from the plaintiff Grubbs.

The issues submitted to the jury and their answers were as follows :

“1. Did the defendant, Stephenson, rent land of the plaintiff and J. W. Jordan as is alleged in the Complaint? Answer. No.

“2. Did crops seized in this action grow on said lands ? Answer. No.

“3. If so, did the said Grubbs make advancements in supplies and money, as is alleged, to said Stephenson ? Answer. Yes.

“4. Is the defendant, Stephenson, indebted to said Grubbs for such advancements. If so, in what sum ? Answer. Yes; $161.50, with interest from 1st day of November, 1887.

“5. What was the value of the property seized in this action by the plaintiffs ? Answer. $125.35, with interest from 1st day of November, 1887.”

A contract was introduced, signed by the defendant *68Stephenson, agreeing to rent from J. W. Jordan, Jr., and "W. E. Grubbs, a one-horse crop of forty acres of land for the year 1887, and to pay therefor 900 pounds lint cotton. The words “"W. E. Grubbs” had been interlined after the agreement was first written. There was conflicting testimony as to whether tire interlineation was made before or after the signing by Stephenson.

The plaintiff, W. E. Grubbs, testified that after Jordan rented the Bridgets land of H. B. Peebles, he let him taire a half interest in the lease ; that in January, 1887, Charles Stephenson came to him to rent a one-horse crop on said farm; that he selected a piece of land lying west of the road, but did not conclude the bargain for it; that a few days afterwards he came again — he told Stephenson that he had let Coats have the piece of land on the west side of the road, but to go to Mr. J. W. Jordan and he could get land on east side of the'road just as good. He further testified that when Stephenson came the second time, he, Grubbs, and Jordan had just returned from stepping off the land which Jordan let Stephenson have; that Jordan attended to renting out the land and writing the contracts, and Grubbs collected the rents and settled with H. B. Peebles ; that the words “and W. E. Grubbs,” were in the handwriting of J. W. Jordan, and were there when the paper was handed to him ; that during the year 1887 he furnished Charles Stephenson with money and agricultural supplies to the amount of $_, of which Stephenson paid $_, and left due him on the 1st day of November, 1887, $161.50; that he had been merchandising at Seaboard for several years, before and after 1887, but had never, except in 1887, trusted Charles Stephenson for any goods, &c.; that if he was not Stephenson’s landlord he had no lien for said advancements. The crops seized grew *69on the land described in Exhibit A. Charles Stephenson told me it did.

I testified, on a former trial of this case, that the receipts for the rents received from Charles Stephenson was in J. "W. Jordan’s handwriting. All the rents were paid, and Charles Stephenson had turned over cotton to me, amounting to seventy-four dollars, in part payment of his account for advancements. 1 was a merchant at that time.

Charles Stephenson, for defendant, testified: That in Jnauary, 1887, he went to Mr. W. F. Grubbs to rent a one-horse farm of the Bridgers land; that Grubbs told him that he could get a piece on west side of the road. A few days afterward he went to see him again, and Grubbs told him that he had let Coats have that piece of land, as he was already on it, but that Mr. J. W. Jordan would let him have all the land he wanted on east side of the road. He went to Mr. Jordan, and he let him have apiece of land lying northeast from the house, which had been staked off, and said it was 40 acres. Afterwards he rented of Mr. Jordan .another piece nearer the house, said to contain 35 acres, and also hired Mr. Jordan’s mule. He admitted signing the paper marked “Exhibit A,” but said if W. F. Grubbs’ name was in it, it was not read to him. He said Grubbs had furnished him supplies in 1887, but none before or since. He was asked : Hid you rent any land of Grubbs for the year 1887 ?

First Exception : This question was objected to (not, however, upon the ground it was leading) by plaintiff. Objection overruled, and witness answered that he had never rented any land from Grubbs at any time. _ Plaintiff excepted. The crop seized was grown on the land rented for Stancill, and not on the’ land described in “Exhibit A.” I never told Mr. Grubbs that the crop grew on the land described in “Exhibit A.”

*70Second Exception: Defendants offered in evidence a paper writing, purporting to be a lease from M. E. Stancill to defendant Stephenson. Objection by plaintiff; objection overruled, and plaintiff excepted.

The jury answered “No” to 1st and 2d issues ; “Yes” to 3d, and $161.50 to 4th, with interest from Nov. 1, 1887.

Plaintiff moved to set aside the verdict—

1. Because it was contrary to weight of evidence.

2. Because the findings on first and second issues were inconsistent with, and contradictory to the finding on third issue. Motion overruled, and plaintiff excepted.

Plaintiff then moved for a trial de novo, upon the grounds—

1st. That the verdict was inconsistent and contradictory, as above stated.

2d. For error in admitting Stepheuson to-testify that he never rented any land of Grubbs.

3rd. For error in admitting in evidence paper writing “B.” Motion overruled, and plaintiff excepted.

Plaintiff then moved for judgment against Stephenson for $161.50. Motion refused, and plaintiff excepted.

Plaintiff then moved for judgment against Stephenson for $161.50, less $125.35. Motion overruled, and plaintiff excepted.

The plaintiff insisted that Stephenson, having admitted in his answer that M. F. Stancill was his landlord, and entitled to the crop, was not entitled to a judgment for the return of the property, and, for that reason, the condition of his bond was not broken. Overruled, and plaintiff excepted.

Judgment was rendered for the defendant Stephenson “against the plaintiff and his surety on the appeal and stay bond for $125.85, with interest from November 1st, 1887, *71till paid and tbe costs, it appearing that the property seized cannot be returned to the defendant.”

Plaintiff appealed.

In addition to the exceptions noted, the appellants filed the following to the judgment, to-wit:

“Upon the pleading, Stephenson is not entitled to a return of the property, and no judgment should have been taken against W. J. Rogers.

“2. The judgment does not conclude and put an end to the issues raised in the pleadings.

“3. It should be in the alternative.”

Mr. P. B. Peebles, for plaintiff (appellant).

Mr. W. S. Pay, for defendant.

Clark, J.:

Construing the responses to the issues in connection with the pleadings and evidence it is clear that there is no contradiction between the finding on the third issue and that on the first and second. It would simply be “sticking in the bark” to construe the words “if so” which appear in the third issue, but not in the response, as having that effect. The jury to these issues simply found that the defendant did not rent the. land of Grubbs but that Grubbs made him advances for which the defendant owes him to the amount found in response to the 4th issue.

There being evidence tending to show that Grubbs’ name was not in the lease when signed by the defendant, it was competent for him to testify that as a matter of fact he had rented no land of Grubbs that year; this was admissible, not to contradict the paper writing but if the jury should find Grubbs’ name was not in the paper when signed to negative any verbal contract of renting from Grubbs of that, or any other land. The defendant having testified that he had rented the land in question of Stan-*72cill it was competent to corroborate bim by producing tbe lease from tbe latter.

Tbe plaintiff’s bond being for the return of tbe property if adjudged against bim (The Gode, Sec. 324), neither the plaintiff nor bis surety can complain that when tbe property, or its value, is returned to the defendant tbe latter must forthwith hand it over to the intervener. That matter in no wise concerns tbe plaintiff. Tbe property being adjudged not to be bis, by bis bond be must return it or account for the value of it. Indeed, if the judgment bad directed the return not to the defendant, but to tbe intervener direct, because of its being due him by the defendant, the plaintiff’s bond would be responsible for tbe execution of the judgment. Barrington v. Skinner, at this term. The Gode does not favor circuity of actions, and the gist of the bond is the return of the property taken or its value and the disposition of it, whether direct to the defendant or to the interpleader as the defendant’s assignee, does not concern the plaintiff.

The judgment disposes of the controversy so far as the plaintiff is concerned. He cannot be heard to object that judgment was not rendered in favor of the intervenof, as might have been done. Barrington v. Skinner, supra. Gode, Sec. 424 (1).

The judgment ought properly to have been in the alternative for the return of the property, or if that cannot be had, for its value with damages. Code, Sec. 431; Council v. Averett, 90 N. C., 168; Hall v. Tillman, 103 N. C., 276. The judgment should be thus modified and affirmed.

Modified and Affirmed.