J. S. Noyes & Co. v. Jenkins

• Decision Date: 31 January 1876
• Citation: 55 Ga. 587
• Court: Georgia Supreme Court
• Parties: J. S. Noyes & Company, plaintiffs in error. v. James L. Jenkins, defendant in error.

55 Ga. 587

J. S. Noyes & Company, plaintiffs in error. v. James L. Jenkins, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1876.)

Sale. Title. Crops. Before Judge Buchanan. Polk Superior Court. August Term, 1875.

*Reported in the opinion.

Joseph A. Blance, by E. N. Broyles, for plaintiffs in error.

No appearance for defendant.

Jackson, Judge.

J. S. Noyes & Company brought trover against the defendant for five bales of cotton, to be the first five bales picked, ginned and packed from the crop of 1874. The contract by which they claimed title to this cotton was in writing, and dated 9th of February, 1874. It is clear, therefore, that though the contract calls the crop a growing crop, that on the 9th of February no crop of cotton was growing, or even planted, at that time in the county of Polk, where the plantation was. The court held in substance that there could be no recovery; that no title passed to this inchoate crop, namely: for want of delivery, and the questions for us to deecide are, did title pass to the vendees, and can they recover in trover?

In the case of Cudworth against Scott, 41 New Hampshire, 456, it was ruled that a mortgage of crops of a certain year on a certain farm will pass to the mortgagee a lien for such grasses as spring from the ground annually, but not to such as growfrom seed sown, the seed not being sown at the date of the contract. In the supreme court of the United States in Butt v. Ellett, page 544, 19 Wallace, it was held, not that title could pass before a crop was planted to any part thereof so as to authorize a recovery in trover, but that a mortgage on such a crop would attach its lien to it when it sprang up, and the lien would be preferred to other subsequent liens.

In a late case reported in the Law and Equity Reporter for April 5th, 1876, Apperson & Company v. W. E. & C. L. Moore, it was held by the supreme court of Arkansas that an action to recover an implanted crop, or its value, would not lie, because that which has no actual or potential existence is not the subject of grant; but that when a mortgage is executed *on an implanted crop, a lien attaches in equity, as soon as the subject of the mortgage comes into existence, and in a proceeding to foreclose will be enforced against the mortgagor, and those claiming under him with record notice. In Stephens v. Tucker, decided at the last term, it was held by this court that a mortgage upon a part of a crop actually growing,...