
    W. H. BURWELL v. COOPERS CO-OPERATIVE COMPANY.
    (Filed 27 September, 1916.)
    landlord and Tenant — Contracts—Option of Purchase — liens—Statutes.
    Where the owner has entered into a written contract to rent his land at a stated price per annum, the relation of landlord and tenant is not changed to that of vendor and purchaser or disturbed by the fact that, under the further terms of the contract, the other party had an option to purchase the lands upon making a certain additional payment, time being of the essence of the contract entered into, which he has not exercised; and as landlord, the owner may enforce his statutory lien for a part of the rent remaining due him.
    Appeal from a -justice of the peace, heard by Stacey, J., at May Term, 1916, of YaNCe.
    At the conclusion of the evidence, the motion to nonsuit was sustained. The plaintiff appealed.
    
      Tasker Polk and T. T. Hides for plaintiff.
    
    
      B. H. Perry and A. G. & J. P. Zollicoffer for defendant.
    
   Bbowk, J.

This action is brought to recover $175 which the plaintiff alleges is due him by one P. C. Arrington, his tenant, for rent'for the year 1915 for a certain farm. The evidence tends to prove that the •said Arrington occupied the farm during the said year, cultivated a ■crop of tobacco and sold the same to the defendant; that he failed to pay the plaintiff the alleged rent, and plaintiff seeks to recover it of the defendant under the lien given to landlords.

The defendant denies that Arrington was the tenant of the plaintiff, averring that the relation of vendor and vendee existed between them. The question is to be determined by the written contract between the plaintiff and tbe said Arrington, dated 1 December, 1914. This contract provides that tbe plaintiff, “In consideration of tbe execution of tbe rent note in tbe sum of $250 by tbe party of tbe second part to W. H. Burwell, one of tbe parties of tbe first part, being for tbe rent of tbe place hereinafter described for tbe year 1915,” etc., gives to Arrington an option on tbe place until 1 December, 1915, to purchase it at a stipulated price mentioned in tbe agreement.

In several places in tbe agreement tbe $250 note is described as tbe rent which Arrington is to pay for tbe place for tbe year 1915. In case tbe said Arrington paid tbe said note in full, and made additional payments set out in tbe contract, then tbe parties of tbe first part agreed to make him a deed for tbe property. There is no evidence that any payments were made by Arrington, except about $75 on tbe rent note. A similar contract was entered into between tbe parties in preceding year for tbe year 1914.

His Honor thought that this agreement created a relation of vendor and vendee, and that tbe plaintiff could not enforce bis lien as landlord against tbe tobacco in tbe bands of tbe defendant. In this we think there is error. It has been expressly held that where land is sold on credit, and a mortgage is executed by the vendee to the vendor to secure payment of tbe purchase money, tbe vendor, as mortgagee, has tbe right of possession, and that it is competent for the parties to contract that tbe possession shall be held by tbe purchaser until payment is made, and that in consideration thereof tbe relation of the parties shall be that of landlord and tenant. In such case the landlord’s lien for rent takes priority of a mortgage for advancements. Crinkley v. Edgerton, 113 N. C., 445.

Although that decision was not by a unanimous Court, it has been subsequently affirmed and acted upon in a number of cases, cited in the annotated edition: Jones v. Jones, 117 N. C., 254; Ford v. Green, 121 N. C., 70; Ewbanks v. Becton, 158 N. C., 238; Hawser v. Morrison, 146 N. C., 252; Hides v. King, 150 N. C., 371.

Tbe case at bar is much stronger than any of those which we have cited. The agreement in this case does not create the relation of vendor and vendee, as contract of sale does not appear upon tbe face of tbe paper to have been perfected. The effect of tbe instrument appears upon its face to give to Arrington an option on the place, and a definite time is fixed within which he has to exercise bis right. It is expressly provided that time shall be of tbe essence of tbe contract. Under such conditions we see no reason why it was not competent for tbe parties to occupy tbe relation of landlord and tenant towards each other pending such period.

New trial.  