#### B. B. WILLIAMS, Trustee, v. R. E. DAVIS, Sheriff, and THE CITIZENS BANK.

(Filed 1 March, 1922.)

Liens — Agricultural Liens — Priorities—Mortgages—Deeds in Trust.

An agricultural lien, given by C. S., 2480, for the purpose of enabling the cultivation of the soil to raise a crop, is preferred by the statute to all others, except those given the landlord or laborer under C. S., 2481, when it is in proper form and duly registered; and it is preferred to liens of other hinds existing by mortgage or deed in trust on the same crop, to the extent of the amount advanced thereunder.

Appeal by plaintiff from Calvert, at the September Term, 1921,. of WARREN.

*91Tbis is a controversy as to tbe title and possession of a tobacco crop, wbicb was sold by tbe defendant, Sheriff E. E. Davis, wbo collected and bas in bis custody tbe proceeds of tbe sale, subject to tbe decision of tbe court as to tbe ownership thereof. Tbe court, upon tbe matter being submitted to it with a statement of tbe facts, entered judgment as follows:

“Tbis action, coming on to be beard at said term of said court, and being beard before Hon. Thomas H. Calvert, judge presiding, and a jury trial having been waived in writing by tbe parties to said action, and tbe parties having agreed upon tbe facts and having submitted tbe same in writing to tbe court as follows:

“1. That one E. B. Newell, Jr., is now, and was at tbe time hereinafter mentioned, a citizen and resident of Warren County, State of North Carolina.

“2. That said E. B. Newell, Jr., during tbe year 1920 was engaged in farming operations in said Warren County.

“3. That on 3 January, 1920, said E. B. Newell, Jr., executed a deed of trust to B. B. Williams, trustee, wherein tbe grantor conveyed to said trustee an undivided one-balf interest in a certain tract of land therein described, and also conveyed by said instrument, a one-balf undivided interest in certain tobacco in tbe following language: ‘And does also sell and convey and set over to tbe aforesaid Williams, trustee, a one-balf undivided interest in and to one hundred acres of tobacco to be grown by Newell Brothers on tbe above described lands and adjoining tract of said Newell’; that said deed of trust was filed for registration in tbe office of the' register of deeds for said Warren County on 5 January, 1920, and was registered in said office in Book 107, page 166, wbicb book is one of those regularly used for recording deeds of trust on lands.

“4. That on 7 February, 1920, said E. B. Newell, Jr., executed to tbe citizens bank of Warrenton an agricultural lien for advances, according to tbe regular statutory form, to secure tbe payment of tbe sum of $3,000, and in said agricultural lien said Newell conveyed certain cattle and chattels, and gave a lien upon all crops to be grown during tbe year 1920 on tbe lands described in said agricultural lien; that said lien was duly filed and registered in tbe office of tbe register of deeds for said Warren County in Book 44, page 473, wbicb book is one of those regularly used for recording agricultural liens.

“5. That about $2,000 of tbe amount secured by said E. B. Newell, Jr., in tbe deed of trust executed to B. B. Williams, trustee, as aforesaid, was used by said E. B. Newell, Jr., in tbe making and cultivation of tbe tobacco mentioned in said deed of trust.

“6. That tbe $3,000 secured by said E. B. Newell, Jr., in tbe agricultural lien executed by him to tbe Citizens Bank of Warrenton was made *92to said Newell at tbe time of tbe execution of said lien, and was used by said E. B. Newell, Jr., in tbe making, cultivation, and saving of tbe crops on tbe lands described in said agricultural lien.

“7. Tbat tbe defendant R. E. Davis, sheriff of said Warren County, under a warrant issued to bim by tbe clerk of tbe Superior Court of said county on 17 January, 1921, under section 2488 of tbe Consolidated Statutes of North Carolina, seized certain tobacco, tbe same being a part of tbe crops cultivated and grown by said E. B. Newell, Jr., on tbe lands described in tbe aforesaid agricultural lien and deed of trust, and after due advertisement, sold said tobacco on tbe premises of said E. B. Newell, Jr., at public auction to tbe highest bidder for cash; where and when W. B. Boyd became tbe last and highest bidder therefor, and was declared tbe purchaser thereof at tbe price of $1,700; tbat said tobacco was located in barns on tbe aforesaid lands of E. B. Newell, Jr., and was exhibited to tbe bidders at said sale; tbat at said sale tbe plaintiff, tbe Bank of Warren, was a competitive bidder for said tobacco; tbat said W. B. Boyd, tbe purchaser of said tobacco, complied with bis said bid, and tbe defendant R. E. Davis, sheriff, as aforesaid, delivered said tobacco to said W. B. Boyd.

“8. Tbat tbe land security embraced in tbe aforesaid deed of trust' to B. B. Williams, trustee, was on 7 February, 1921, sold under tbe terms of prior deed of trust, but surplus was not sufficient to pay off tbe debt secured by said deed of trust.

“9. Tbat tbe crops, cattle, and chattels embraced in tbe lien executed by said E. B. Newell, Jr., to tbe Citizens Bank have been exhausted and were not sufficient to pay off tbe debt secured by said lien.

“And tbe parties to this action having agreed in writing for tbe court to render such judgment as may be proper upon tbe foregoing agreed facts, it is now by tbe court, after bearing tbe arguments of counsel for plaintiffs and defendants, considered, ordered, and adjudged tbat tbe agricultural lien to tbe Citizens Bank, junior in date and registration to tbe mortgage or deed of trust to B. B. Williams, trustee, takes precedence of said deed of trust; and it is further ordered and adjudged tbat tbe proceeds derived from tbe sale of tbe tobacco be applied as follows : First, to tbe payment of tbe amount now due on tbe $3,000 secured by said agricultural lien; second, tbat tbe surplus, if any, shall be applied to tbe amount now due on tbe debt secured by said deed of trust to B. B. Williams, trustee. It is further considered and adjudged tbat tbe plaintiffs pay tbe costs of this action to be taxed by tbe clerk, and tbat tbe defendants go hence without day. Thomas H. Calvert,

Judge Presiding

Plaintiff excepted to this judgment, and appealed.

*93 B. B. Williams for plaintiff.

Tasker Polk and Murray Allen for defendants.

Walker, J.

There is no doubt that the instrument, under which the Citizens Bank asserts its right to the proceeds of sale now in the hands of the sheriff, is what is known as an agricultural lien, and was drawn and registered in accordance with the statute, C. S., 2480. Unless, therefore, the plaintiff can show a prior valid lien upon the crop of tobacco, the proceeds of which are now claimed by the defendants, the judgment of the court was correct. The lien of the Citizens Bank is, in form and substance, an agricultural lien, and as it was duly registered is entitled to preference over all other liens except the laborer’s and landlord’s liens, to the extent of the advance made under it. The instrument, under which the plaintiff claims these proceeds is in form and substance nothing more than a deed of trust to secure a debt. It is true the lien of it rests upon a part of the crop as well as upon the other property described in it, but this does not necessarily make it an agricultural lien, which is entitled to any special priority under the statute over others existing or otherwise. If the deed of trust was simply given to secure an antecedent debt due to the Bank of Warren, and was not in form, and in fact an agricultural lien, the Bank of Warren acquired no prior lien upon the crop of tobacco over the Citizens Bank. This is settled beyond dispute by the following cases in this Court: Clark v. Farrar, 74 N. C., 686; Patapsco v. Magee, 86 N. C., 350; Wooten v. Hill, 98 N. C., 48. There was nothing on the face of the deed of trust to B. B. Williams, trustee, to secure the debt due to the Bank of Warren, under which the plaintiff claims, to notify subsequent lienors, and especially the Citizens Bank, that it was an agricultural lien, or entitled to any more priority or preference than an ordinary mortgage or trust to secure a plain and simple debt owing by F. B. Newell, Jr., to the Bank of Warren, and when it was thus executed and registered the said bank took the risk of an agricultural lien being after-wards registered which would supersede it as' a first lien upon the crop, and also any subsequent encumbrance by deed or mortgage which is not a lien of the kind mentioned and provided for in the statute (C. S., 2480), and peculiarly protected by it even against a prior encumbrancer.

With reference to this somewhat anomalous lien, which relates back and over-reaches prior encumbrances by special provision of the statute, Justice Davis said in Wooten v. Hill, 98 N. C., 53: “Section 1799 of The Code declares that the lien for advances made to enable the cultivator of the soil.to make the crop, shall, as to the crop made by the aid of such advances, be good' ‘in preference to all other liens existing or *94otherwise, to tbe extent of such advances/ upon a compliance with tbe provisions of tbe statute, tbe only exception being tbat in favor of tbe landlord (or laborer); contained in tbe following section. Why does not tbe purchaser or mortgagee of tbe crop take with as full knowledge of tbe provisions of this section of The Code as of that which secures tbe rights of tbe landlord ? He takes with a full knowledge tbat if advances shall be necessary to enable tbe cultivator to make tbe crop, and Without which there would perhaps be no crop, such advances shall be a preferred lien upon tbe crop, made by reason of such advances, and tbat this preference shall extend to 'existing’ liens. All laws relating to tbe subject-matter of a contract enter into and form a part of it, as if they were expressly referred to or incorporated in its terms. O’Kelly v. Williams, 84 N. C., 281; Lehigh Water Co. v. Easton, 121 U. S., 391. It impairs tbe obligation of no contract. Land is sold under execution— there is a lien on tbe crop for advances — tbe purchaser buys in subordination to Ibis lien under section 1199 of Tbe Code. Dail v. Freeman, 92 N. C., 351.” It is said in Herman v. Perkins, 52 Miss., 813, tbat, although an agricultural lien may be junior in date to a mortgage, yet tbe right of tbe mortgagee is subordinate to tbe agricultural lien subsequently imposed by tbe mortgagor upon tbe crop. Tbe statute giving tbe lien in Mississippi is not more absolute or imperative than ours. In Stone v. Simpson, 62 Ala., 194, a similar construction was placed upon tbe agricultural lien law of tbat State, and it was held tbat, under the statute, a crop lien bad “precedence over all prior mortgages, and all prior liens, except tbat of tbe landlord for rent.” Tbe same construction has been placed upon similar statutes in New Jersey, Arkansas, and other states. Vreeland v. Jersey City, 37 New Jersey, 574; Case v. Allen, 21 Ark., 217. Justice Bynum observed in Patapsco v. Magee, 86 N. C., at p. 354: “It is needless to speculate wby this provision is made by tbe statute. It is clearly so written, and can be conveniently observed, and if parties will willfully disregard it, they must abide tbe consequences.”

This seems to be tbe law, with respect to such liens, both in this and in other' jurisdictions where tbe same question has been raised, as appears above.

We must bold, as did tbe learned judge who presided below, tbat tbe prior lien upon tbe proceeds of tbe sale of tbe tobacco belongs to tbe defendant, subject to any just and legal charges thereon in favor of tbe sheriff or other officers for their services, and it will be so certified.

Affirmed.