Appeal by plaintiffs from Barefoot, Judge. Judgment entered 24 March 1981 in Superior Court, Sampson County. Heard in the Court of Appeals 1 April 1982.
Clark, Judge. Judges Arnold and Webb concur.
Plaintiffs assign error to the granting of defendants' motion for directed verdict. A motion for directed verdict under G.S. 1A-1, Rule 50(a), involves a determination of whether the evidence was sufficient to entitle the plaintiff to have a jury pass on it. The question presented to the appellate court in reviewing the decision of the trial court is identical to that presented to the lower court by defendant's motion: whether the evidence, considered in the light most favorable to plaintiff, was sufficient for submission to the jury. Hunt v. Montgomery Ward and Co., 49 N.C. App. 642, 272 S.E.2d 357 (1980).
Plaintiffs' claim to the proceeds from the sale of the tobacco crop derives from the landlord's lien statute, G.S. 42-15, which provides, in pertinent part, as follows:
"When lands are rented or leased by agreement, written or oral, for agricultural purposes, . . . unless otherwise agreed between the parties to the lease or agreement, any and all crops raised on said lands shall be deemed and held to be vested in possession of the lessor or his assigns at all times, until the rents for said lands are paid and until all the stipulations contained in the lease or agreement are performed, or damages in lieu thereof paid to the lessor or his assigns, and until said party or his assigns is paid for all advancements made and expenses incurred in making and saving said crops. . . .
This lien shall be preferred to all other liens, and the lessor or his assigns is entitled, against the lessee or cropper, or the assigns of either, who removes the crop or any part thereof from the lands without the consent of the lessor or his assigns, or against any other person who may get possession of said crop or any part thereof, to the remedies given in an action upon a claim for the delivery of personal property." (Emphasis added.)
The evidence presented at trial and the order confirming the arbitration award show clearly that plaintiffs had a landlord's lien
on the crops grown by Moore on plaintiffs' farm. The lien is acquired automatically by virtue of the landlord's status, and no writing or recordation is required in order to establish the lien. A person who deals with the tenant is charged with notice of the landlord's rights under G.S. 42-15. "The statute itself gives notice to all the world of the law relative to a landlord's lien." Hall v. Odom, 240 N.C. 66, 69, 81 S.E.2d 129, 132 (1954).
It is correct, however, as defendants argue in their brief, that the landlord can expressly or impliedly waive the lien or by his acts and conduct be estopped from asserting the lien. Hall v. Odom, supra. Relying on Adams v. Warehouse, 230 N.C. 704, 55 S.E.2d 331 (1949), defendants contend that by giving Moore his tobacco marketing card, Rivenbark in effect constituted Moore as his agent to sell the tobacco for their joint benefit, with the understanding that Moore would account to Rivenbark for his share of the proceeds of the sale. However, waiver and estoppel are affirmative defenses which must be pleaded with certainty and particularity and established by the greater weight of the evidence. Hall v. Odom, supra. The record shows that defendants presented no evidence in the case sub judice. While the evidence presented by plaintiffs might permit a finding that plaintiffs waived their lien rights or were estopped to assert them, we do not believe that the evidence compels such a finding as a matter of law. Plaintiffs' evidence could also permit a finding that prior to issuance of the check to Moore for the sales proceeds, defendants had knowledge of plaintiffs' superior claim since Rivenbark attempted several times to obtain possession of the tobacco marketing card from defendants. See, Sugg v. Parrish, 51 N.C. App. 630, 277 S.E.2d 557, disc. rev. denied, 303 N.C. 550, 281 S.E.2d 401 (1981). We find that plaintiffs' evidence was sufficient to require submission to the jury and to overcome defendants' motion for a directed verdict.
The judgment allowing defendants' motion for a directed verdict is reversed, and this action is remanded for a new trial.