#### H. C. AVERA v. DAVID McNEILL.

*Note*— Rent *of Land*— Crop *Raised Thereon*— Application Thereof,1

1. Where the defendant is indebted on a note (which comes to plaintiff’ by assignment) for the rent of land, and cotton raised thereon by the defendant is taken by the plaintiff into his possession -upon whatsoever pretext, the law applies the same to the satisfaction of the rent note.

2. Thfe fact that defendant told the plaintiff, “You moved it (the cotton) withoutiny consent and you may do what you please with it,” does not constitute a waiver of such application, so as to enable plaintiff to apply the proceeds to other indebtedness of the defendant.

Civil ActioN, tried at Spring Term, 1877, of Harnett Superior Court, before MeKoy, *J.*

This was an appeal, from a Justice’s judgment, and the aetion was founded upon a note of which the following is a copy: _

_ “On or before February 15th, 1876, we or either, of us promise to pay X. Murchison, Guardian of M. Y. McNeill?, one hundred and’ eighty-three dollars, for rent of the land on the east side of the Cape Fear River with the exception-of the piece bid off by Miss.G.”

(signed) I)avio McNeill, [seat.jr

*51• This note was assigned by endorsement of the payee to-the plaintiff.

The defendant set tip a counter-claim for work and labor in clearing a portion of the rented, land, and for cotton of which the .plaintiff had received the benefit, and the plaintiff replied with an account against the defendant.

The plaintiff testified, that he informed the defendant that he had bought the said note, and that thereafter the de^-feadaat borrowed his wagon to haul the cotton to a gin ; after the cotton was ginned and baled, the plaintiff'hauled it (two. bales) to his storehouse, without the consent or direction of defendant. That he informed the defeudant where, it was, and requested him to sell the cotton and pay the note; that subsequently he asked the defendant what he-, should do with the cotton, and the defendant, in an angry manner, replied “you moved it without my consent and yous may do what you please with itthat plaintiff sold the cotton and applied the proceeds to the payment of an account agaiust the defendant, and credited the balance ou said note, to-wit; “Or. by balance in cotton, $18.89.”

It was in evidence that said cotton was raised on the. rented land.

The testimony of the defendant was not in- conflict with that of the plaintiff in regard to that part of the transaction? upon which the decision turns.

ITis Honor charged the jury, in substance, that where *&*creditor holds two or more claims against a party who pays a part of the indebtedness without directions as to what claim the payment shall he applied, the creditor would have the fight to apply it to the debt for which be held the least. ' security ; and that in making up their verdict they should! ' allow • the defendant the value of his labor in clearing the land. Verdict for plaintiff. Judgment. Appeal by defendant.

*52
      *Messrs. Guthrie*Carr, for plaintiff.

*Mr. Neill*McKay, for defendant.

Pearson, C. J.

B)t force of the “Landlord and Tenant Act,” (Bat. Rev. cii. 64, § 13) as amended by the act of 1874-’75, ch. 209, the cotton, which is the subject of the controversy, was bound for the payment of the “rent note” as'.it is aptly termed in the statement of the case.

When the plaintiff, no matter under what pretext, took the two bales of cotton, it was an application thereof inpayment ■of the “rent note,” and His Honor erred in allowing the jury to give to the remarks of the defendant, evidentty made in passion, the effect of a waiver of this application. The fact of making it, the application, is the only justification that the plaintiff can offer for taking the cotton; so the most favorable point of view in which it can be put for him, is, that he had the two bales of cotton hauled to his storehouse, in payment of the “rent note,” And wre are of opinion that the legal effect of this act was not waived by the words after-wards used by the defendant.

Error.

Per Curiam. *Venire de novo.*