
87 S.E.2d 502 (1955)
242 N.C. 255
Robert McNEILL
v.
A. G. McDOUGALD, Jr.
No. 598.
Supreme Court of North Carolina.
May 25, 1955.
*504 Powell & Powell, Whiteville, for plaintiff-appellant.
Oliver Carter and Hewlett & Williams, Wilmington, for defendant-appellee.
PARKER, Justice.
When a verdict is set aside for error in law, and not as a matter of discretion, the aggrieved party may appeal, provided the error is specifically designated. Akin v. First Nat. Bank, 227 N.C. 453, 42 S.E.2d 518; Powers v. City of Wilmington, 177 N.C. 361, 99 S.E. 102. Here, the Trial Judge stated that he set the verdict aside, and granted a new trial on the ground that he inadvertently failed to *505 charge the law as contained in G.S. § 44-63. This suffices for the appeal.
G.S. § 44-63 reads: "If any person in the counties mentioned in the preceding section,"the county where the tobacco crop here was raised and taken is named in the preceding section"after executing a lien as aforesaid for advances, fails to cultivate the lands described therein, or does any other act calculated to impair the security therein given, then the person to whom the lien was executed is relieved from any further obligation to furnish supplies, and the debts and advances theretofore made become due and collectible at once, and the person to whom the instrument was executed may proceed to take possession of, cultivate and harvest said crops, and to sell the other property described therein. It is not necessary to incorporate such power in the instrument, but this section is sufficient authority for the same. The sale of any property described in any instrument executed under the provisions of this chapter may be made at any place in the county where such property is situated after ten days' notice published at the courthouse door and three other public places in said county."
A failure of the court to charge the law on the substantial features of the case arising on the evidence is prejudicial error, even though there be no request for special instructions to that effect. Barnes v. Caulbourne, 240 N.C. 721, 83 S.E.2d 898; Howard v. Carman, 235 N.C. 289, 69 S.E.2d 522; State v. Bryant, 213 N.C. 752, 197 S.E. 530; G.S. § 1-180. This is a substantial legal right. Spencer v. Brown, 214 N.C. 114, 198 S.E. 630.
It is the duty of the judge to declare and explain the statutory law as well as the common law on the substantial features of a case arising on the evidence. Barnes v. Teer, 219 N.C. 823, 15 S.E.2d 379; Kolman v. Silbert, 219 N.C. 134, 12 S.E.2d 915; Bowen v. Schnibben, 184 N.C. 248, 114 S.E. 170.
Where a judge's charge eliminates from the case a substantial part of it, which would necessarily prejudice one of the parties, it is prejudicial error. Bowen v. Schnibben, supra; Matthews v. Myatt, 172 N.C. 230, 90 S.E. 150.
We said in the recent case of Hall v. Odom, 240 N.C. 66, at page 70, 81 S.E.2d 129, at page 132: "It is not to be understood that a landlord cannot by agreement, express or implied, waive his lien, or by his acts and conduct be estopped from asserting his lien." See also Adams v. Growers' Warehouse, 230 N.C. 704, 55 S.E.2d 331; 52 C.J.S., Landlord and Tenant, §§ 650 and 819.
The essence of McDougald's defense is that the plaintiff by his acts, words and conduct is estopped to deny that the tobacco crop was the property of his wife, Josephine McNeill; that McDougald had liens on it for supplies and advances executed by her and Burney upon their respective interests therein, in conformity with G.S. § 44-62; that Josephine McNeill and Burney, by permitting the tobacco to burn up in the field and by improper curing of it, did acts impairing the security of his liens, and thereby pursuant to G.S. § 44-63 their debts secured by these liens became due and collectible at once, and he had the right to take possession of and sell the tobacco crop.
It is plain that the provisions of G.S. § 44-63 providing that the lien shall become due and collectible at once, if the person executing the lien does any act calculated to impair the security therein given, has no application, unless there is a valid lien. It is also plain, that if the plaintiff is estopped to deny that defendant had valid liens, that fact alone would not make the liens due and collectible prior to their maturity date.
The judge charged the jury, that if they found by the greater weight of the evidence, the burden being upon the defendant, that the facts in respect to estoppel were as contended by the defendant, they would answer the issue: "Did the defendant wrongfully seize and convert to his own use the tobacco crop of the plaintiff Robert McNeill," No.
*506 Does the answer to the first issue establish the fact that defendant had no valid liens on the tobacco crop, and make the judge's failure to charge the provisions of G.S. § 44-63 as to when a lien could become due and collectible at once under certain circumstances immaterial?
The first issue does not squarely present to the jury the sole question as to whether plaintiff was estopped to deny that the defendant had valid liensit presents the question as to whether or not there was a wrongful seizure and conversion. It seems clear that in the trial below the plaintiff contended that the defendant wrongfully seized the tobacco crop before the liens were due, because the judge in charging on the issue of punitive damages so stated, and because at the end of the charge the defendant requested the judge to charge, "that a mortgagee may seize a chattel even before the obligation becomes due under circumstances showing an impairment of security," which request was refused. If the defendant had valid liens, and seized the tobacco crop before the liens were due, it was a wrongful seizure.
It seems that one of the essential theories of the trial below in respect to the first issue was this: the plaintiff contended that there was a wrongful seizure before the liens were due; the defendant contended that the liens were due and collectible under the provisions of G.S. § 44-63. This theory is as deeply imbedded in the first issue as the theory of estoppel. The judge eliminated from the case this substantial part of the defendant's defense supported by his evidence that his liens were due and collectible when he seized the tobacco crop, by failing to charge the provisions of G.S. § 44-63. Such failure in our opinion was prejudicial, for the jury could well have found from the evidence and the charge that plaintiff was estopped, but that the defendant, according to plaintiff's contention, wrongfully seized and converted the tobacco crop before the liens were due, and have answered the first issue Yes, in the absence of any charge by the court that plaintiff's liens had become due and collectible at once if the security given in the liens was being impaired. The able judge below was apparently of the same opinion for he set the verdict aside as a matter of law because he failed to charge the provisions of G.S. § 44-63. An appeal ex necessitate follows the theory of the trial in the court below. Lyda v. Town of Marion, 239 N.C. 265, 79 S.E.2d 726.
When the case is tried again it would seem preferable to submit issues of estoppel, and as to whether the liens had become due and collectible when the tobacco crop was seized.
It must not be understood that we are expressing any opinion upon the evidence, or deciding that an issue on punitive damages should or should not be submitted to the jury. We are concerned with this one question of law: Was G.S. § 44-63 a substantial feature of the case arising on the defendant's evidence? In our opinion, it was on the evidence before us, and we think that the controversy should be submitted to another jury with specific instructions on G.S. § 44-63.
Affirmed.
BOBBITT, Justice (dissenting).
A verdict is interpreted by reference to the pleadings, the evidence and the judge's charge. Jernigan v. Jernigan, 226 N.C. 204, 37 S.E.2d 493.
Defendant claimed the tobacco seized by him by virtue of a chattel mortgage executed by plaintiff's wife. Defendant had no chattel mortgage executed by plaintiff.
The complaint contains no allegation that the defendant's seizure of plaintiff's tobacco was wrongful because it occurred before the debt became due. The sole theory of the complaint, as I read it, is that the defendant had no lien at all on plaintiff's tobacco. Evidently this was plaintiff's contention at the trial. This excerpt from the charge epitomizes the instructions given by the court relating to the *507 first issue: "If you find from the evidence and by its greater weight that the tobacco in question that was taken belonged to Robert McNeill, then the first issue should be answered in Robert McNeill's favor, unless you find that Robert McNeill is estopped now to claim that tobacco, or the proceeds of that tobacco, or its value." The jury having answered the first issue "no," the only conclusion that I can reach is that the jury found that the defendant had no lien on the plaintiff's tobacco. On this first issue, the crucial question for the jury arose on the defendant's plea of estoppel.
Furthermore on the second issue the judge charged the jury: "If you find from the evidence and by its greater weight that Mr. McDougald knew that the tobacco in question was the property of Robert McNeill, and knew that he had no claim to it, but took the tobacco in an effort to force Robert McNeill to assume and pay for the debts of his wife, or Henry Burney, or otherwise acted in a wanton and reckless disregard of the rights of Robert McNeill, then you should answer the second issue yes." (Italics added.) On the second issue the crucial question was whether the defendant knew that he had no lien on the plaintiff's tobacco.
The court made no reference at all in his instructions bearing on the first and second issues to whether plaintiff's wife's debt had matured when the defendant seized the plaintiff's tobacco.
The only reference I can find in the charge to the fact that the seizure of the plaintiff's tobacco occurred before plaintiff's wife's debt matured is included in this summary of the court of plaintiff's contentions in relation to the fourth (punitive damage) issue. "McNeill contends that under all the facts and circumstances in the case you should take into consideration the fact, if it was a fact, that the Claim and Delivery Proceeding was taken out before the lien was due, and that Mr. McDougald had no legal right to take it out; that you should further take into consideration what he contends to be a fact that he, Robert McNeill, had refused to sign the mortgage, or lien, and that Mr. McDougald knew that, and that he still took his, McNeill's, property under process of the Court without any proper cause or right." (Italics added.)
If the defendant knew the tobacco belonged to the plaintiff, and seized it under color of claim and delivery proceedings against the plaintiff's wife, without making the plaintiff a party to such proceedings, it would seem that the fact that her debt was not even due was a circumstance properly to be considered, along with the other circumstances relevant to the fourth issue.
In my opinion, G.S. § 44-63, which presupposes the existence of a valid lien, had no bearing on the issues raised by the pleadings and answered by the jury under the instructions of the court.
