#### GAMMON v. JOHNSON. (Royster, Intervener.)

(October 16, 1900.)

1. Mortgages — Assignee—Dents and Profits.'

The assignee of a mortgagee, in possession, is chargeable with rents and profits.

2. Mortgages — -Burden of Proof.

A mortgagee in possession is presumed to have entered as mortgagee.

3. Usage — Evidence—Gustom.

Custom is inadmissible where there is direct evidence that it was not observed in the transaction in question.

Civil ActioN by G. R. Gammon against J. W. Johnson and wife Indiana Johnson, and W. H. Johnson, to foreclose a mortgage, in which E. S. Royster, administrator of O. C. Parrar, a judgment creditor, intervened, heard by *54Judge U. B. Starbuch and a jury, at Spring Term, 1900, of EdgecoMbb Superior Court. Erom judgment for plaintiff, intervener appealed.

J. B. Qashill and John L. Bridgers, for plaintiff.

Or. M. T. Fountain, for intervener.

Burches, J.

In 1887 the defendant, Johnson, borrowed $1,350 from Sberrod & Bro., for which he executed his note, and also a mortgage or deed in trust on the land described in the complaint, to secure the payment of said note. Only $450 had been paid on said note when the plaintiff, on the 5th day of April, 1899, became the purchaser and assignee of said note, and on the same day commenced this action for a foreclosure and sale of said land; and at Spring Term of said Court, no answer being filed, by consent of defendant the plaintiff recovered judgment for the sum of $2,-282.62, and also had a decree of foreclosure and order of sale. A commissioner was appointed, and the land sold on the 4th day of September, 1899, when the plaintiff became the purchaser at the price of $2,700. On the 19th of October, 1891, O. 0. Earrar recovered a judgment against said Johnson for the sum of $2,183.92, which remains unpaid, and is a lien on said land, subject to the mortgage made to secure the Sherrod debt; that said Earrar is dead, and the intervener, E. S. Royster, is his administrator, and at October Term, and before said sale had been confirmed, by leave of Court became a party to said action, and filed his petition. In his said petition he alleges that after the plaintiff purchased and became assignee of the mortgage debt of Sherrod & Bro., and thereby became, in effect, the mortgagee, he took possession of said land, cut and sold timber therefrom, and worked a part thereof in cotton; and said intervener asks that the value of *55said timber and tbe rental value of tbe crop of cotton be applied on tbe mortgage debt, and tbat be bave tbe residue of tbe purchase paid for said land, after paying tbe mortgage debt, reduced by tbe value of tbe timber cut by plaintiff, and tbe rental value of tbe cotton. On tbe trial it was admitted that tbe plaintiff cut timber on said land in April, 1899, which tbe jury find to be worth $34; and tbe plaintiff admitted that be cultivated a two-borse crop of cotton on said land in tbe year 1899, and it was agreed tbat tbe rental value of tbe cotton was $140. But plaintiff says tbat.tbe inter-vener has failed to show tbat be entered upon said land after tbe date of the assignment of the mortgage on tbe 5th of April, 1899, and in fact he alleges tbat tbe intervener introduced no evidence upon this point, while plaintiff says that tbe witness, Corbett, testified tbat tbe custom was to commence preparing for a crop early in tbe year, and tbat some persons commenced in tbe latter part of tbe old year. But tbe same witness (Corbett) also testified tbat be (witness) rented some of this land from tbe plaintiff in March or April, 1899. So it would seem tbat, if there was any such custom as testified to, be and tbe plaintiff did not observe this custom, and it seems tbat no such custom prevailed with tbe plaintiff; and this evidence should not, as it seems from tbe charge of tbe Court it did, influence him in tbe trial.

Tbe Court charged tbe jury, in substance, tbat tbe value of tbe timber cut by tbe plaintiff should be credited on tbe mortgage debt. Pie also charged tbe jury — correctly as we think, and as was admitted by counsel for plaintiff,- — tbat tbe plaintiff, after tbe assignment of tbe mortgage, sustained tbe relation of mortgagee to tbe mortgagor, and the general rule was tbat tbe rents and profits in tbe bands of a mortgagee in possession should be applied to tbe mortgage debt. And he further charged tbat the rule was tbat a mortgagee in posses*56sion of tbe mortgaged premises was presumed to have entered as mortgagee. Tbe charge so far was correct. But be further charged that there was no evidence showing whether the plaintiff entered before or after he became the owner of the mortgage ; that, if he entered before, he would not be liable for the rent cotton, and the burden was on the intervener to show that he entered after the purchase and assignment of the morí gage; and instructed the jury to answer this issue “No,” that the plaintiff was not liable for the rent cotton. In this instruction, there is error. The presumption being that the plaintiff entered as mortgagee, the burden was upon him to rebut the presumption, and to show that he did not so enter, if such were the fact; and it is singular that the Court, after it had slated the rule correctly, should have fallen into this error, for which a new trial must be granted.

Error. New trial.