Stephens v. Tucker

• Decision Date: 31 July 1875
• Citation: 55 Ga. 543
• Parties: J. G. Stephens, plaintiff in error. v. A. W. Tucker,administrator, defendant in error.
• Court: Georgia Supreme Court

55 Ga. 543

J. G. Stephens, plaintiff in error. v. A. W. Tucker, administrator, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1875.)

Mortgage. Lien. Factors. Crops. Before Judge Clark. Lee Superior Court. March Term, 1875.

Reported in the opinion.

Thomas R. Lyon, by R. F. Lyon, for plaintiff in error.

D. H. Pope, by Jackson & Clarke, for defendant.

Jackson, Judge.

In May, 1873, Bostick mortgaged "six bales of cotton now growing and being grown and produced on the plantation in Lee county, cultivated by (himself) myself, and known as the Jesse Tucker plantation, to produce said six bales of cotton said advances, " (meaning thereby the consideration for which the note was given,) "will be used and applied; said six bales of cotton are to average five hundred pounds each, to be well *and fully covered with bagging and securely bound with iron ties, to be delivered in good order and condition at the warehouse of Welch, Bacon & Cook, in Albany, Georgia, on or before the 15th of October next." The mortgage was foreclosed under section 3971 of the Code, and execution issued thereon, and was levied upon eight bales of cotton, in two levies. Tucker interposed his claim to the cotton as administrator of Jesse Tucker, and on the trial of the claim case, the court dismissed the levies "on the ground that the affidavit of foreclosure is not made in compliance with the statute on foreclosures of liens, " and the dismissal of the levies is the error complained of.

No particular form is necessary in Georgia to make a mortgage: Code, sec. 1955. In form, therefore, this lien is a mortgage. But the Code of Georgia goes further and declares that "it may embrace all property in possession, or to which the mortgagor has the right of possession at the time: " Code, sec. 1954. This mortgagor had the possession and the right of possession to his growing crops, and these six bales were to be part of it. A mortgage may embrace a growing crop, the seed being sown and the crop growing: Butt v. Ellett, 19 Wallace, 545; 23 Howard, 117; 2 Hilliard on Mortgages, 196, et seq. But our Code goes yet further, and declares that the mortgage "must specify the debt to secure which it is given, and the property upon which it is to take effect: " Code, section 1955. This paper specifies the debt to secure which it is given, but does it specify the cotton upon which it is to take effect? It is cotton made in 1873 on a certain plantation in the county of Lee; it is six bales of that cotton to weigh so much, and to be packed in a certain way; but which six bales is it? The first six gathered...