Whitworth v. Carter
| Decision Date | 12 April 1929 |
| Docket Number | 19203. |
| Citation | 147 S.E. 904,39 Ga.App. 625 |
| Parties | WHITWORTH v. CARTER. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Under the provisions of the Civil Code 1910, § 3705, where land is cultivated for the owner by a sharecropper, pursuant to the legal relation of landlord and cropper, the landlord, until he has received his part of the crops and has been fully paid for all advances made to the cropper in the year in which the crops were raised, to aid in making the crops, ordinarily has such possession of the crops as will authorize the issuance of a possessory warrant at his instance to recover possession of the crops from a third person who takes possession thereof without his consent and without other lawful warrant or authority.
In such a case the landlord may, according to the facts, have an option as to whether he will proceed by making an affidavit under section 3706 or under section 5371 of the Civil Code 1910. Under the facts of the present case as testified to by the landlord, he was authorized to proceed under section 5371, irrespective of whether he could or might have proceeded under the other section.
Since if the testimony of the plaintiff was true, possessory warrant was a proper and available remedy, the superior court, after a judgment in the plaintiff's favor by the magistrate, committed error in sustaining the defendant's certiorari and rendering final judgment in favor of the defendant upon the ground that under the plaintiff's own testimony he was not entitled to prevail, because trover, and not possessory warrant, was his remedy.
(Additional Syllabus by Editorial Staff.)
In Civ Code 1910, § 3706, providing that, where cropper seeks to take possession of the crops or to exclude landlord from possession thereof, while title remains in latter, the landlord shall have the right to repossess them, phrase "to take" held used in its general sense as meaning to get or gain possession, where it was theretofore held by another, and not by the person acting.
Error from Superior Court, Gwinnett County; W. W. Stark, Judge.
Suit by R. A. Whitworth against Mrs. Lillie Carter. Judgment for plaintiff, defendant's certiorari was sustained by the superior court, and plaintiff brings error. Reversed.
N. L Hutchins and M. D. Irwin, both of Lawrenceville, for plaintiff in error.
O. A. Nix, of Lawrenceville, for defendant in error.
R. A. Whitworth sued out a possessory warrant against Mrs. Lillie Carter to recover possession of a bale of cotton. The affidavit to obtain the warrant followed the language of section 5371 of the Civil Code 1910, which section contains the general provisions of law as to the grounds upon which a possessory warrant may issue. Upon the trial before the magistrate it appeared that the cotton was produced upon lands of the plaintiff, and had been taken and carried away by the defendant.
The plaintiff contended and testified that he had employed the defendant's husband, Sam Carter, as a general farm laborer for a part of his time, and, in addition thereto, had contracted with him as a sharecropper to work the small tract upon which the cotton was produced; that the crops had not been divided; and that he had not been fully paid for all advances made by him to aid in making the crop. The plaintiff's testimony authorized the inference that as to the particular land and the products thereof the relation between the plaintiff and the defendant's husband was that of landlord and cropper.
The defendant and her husband, Sam Carter, both testified that the use of the land was granted to the defendant, Carter's wife, as a part of the contract of hiring between Carter and the plaintiff, and that, under the terms of the agreement, no part of the crops should belong to the plaintiff, but they should be the property of the defendant.
The magistrate sustained the warrant, and ordered that possession of the cotton be surrendered to the plaintiff. The defendant carried the case by certiorari to the superior court, where the certiorari was sustained and a final judgment rendered in favor of the defendant.
The judgment of the superior court affirmatively shows that the judge rendering it exercised no discretion upon the conflicting testimony, but held that, assuming the evidence of the plaintiff to be true, trover, and not possessory warrant, was his remedy.
The plaintiff excepted to this judgment, and brought the case to this court.
1. Granting that the plaintiff's testimony was true, and therefore that the relation between him and the defendant's husband was that of landlord and cropper, was possessory warrant an available remedy, the cotton having been taken and carried away, not by the cropper himself, but by his wife, who was not a party to the contract?
The Code provides that, "Whenever the relation of landlord and cropper exists, the title to and right to control and possess the crops grown and raised upon the lands of the landlord by the cropper shall be vested in the landlord until he has received his part of the crops so raised, and is fully paid for all advances made to the cropper in the year said crops were raised to aid in making said crops" (Civil Code of 1910, § 3705); and also that,"in all cases where a cropper shall unlawfully sell or otherwise dispose of any part of a crop, or where the cropper seeks to take possession of such crops, or to exclude the landlord from the possession of said crops, while the title thereto remains in the landlord, the landlord shall have the right to repossess said crops by possessory warrant, or by any other process of law by which the owner of property can recover it under the laws of this State" (Civil Code of 1910, § 3706).
Notwithstanding these provisions, the defendant in error contends that, before a landlord can proceed by possessory warrant to recover the possession of the crops from a third person, he must show that the property had previously been in his possession (Cobb v. Megrath, 36 Ga. 625; Allen v. Smith, 45 Ga. 84), and that in such a case the landlord does not show such possession merely by proof that the crops were produced by a sharecropper, although the statute allows such a remedy as against the cropper himself in certain circumstances. It is insisted that, under the relation of landlord and cropper, without more, the landlord is not in actual possession of the crops, but merely has a right of possession, and that this is not enough to authorize the issuance of a possessory warrant against one other than the cropper himself.
This does not, in our opinion, represent a proper construction of the Code provisions quoted above. Section 3705 provides that the title to, and the right to control and possess, the crops shall be vested in the landlord, and, while the "right to control and possess" might not in every case imply possession, we think such is the true meaning of the language here quoted.
As respects the remedies of the landlord to enforce his right in the crops, he is to all intents and purposes in actual possession. Sections 3705 and 3706 must be construed together, since they are parts of the same legislative act and stand in pari materia in the Code, and it is provided in the latter section that, where the cropper seeks to take possession of the crops, or to exclude the landlord from the possession thereof, while the title remains in the latter, the landlord shall have the right, not to possess the crops, but to "repossess" the same by possessory warrant. The phrase "take possession," as referring to the wrongful act of the cropper, is also significant. If the cropper were already in possession as against the landlord, it would seem inappropriate to speak of his taking possession. "To take," in a general sense, means to get or gain possession, where it was theretofore held by another, and not by the person acting, and we think that it was in this sense that the term was used in the statute under consideration. Civil Code 1910, § 4268 (2).
Thus, as between the landlord and the cropper, the landlord and not the cropper is the one in possession; the latter being a mere laborer, whose wages are payable in a part of the crops. Howard v. Franklin, 32 Ga.App. 737 (1), 124 S.E. 554. His possession is in right of the landlord, and is to be treated as the possession of the landlord, and, where a landlord is in the possession of crops by and through the cropper as his servant or agent, such possession is actual, and not constructive only. Sheriff v. Thompson, 116 Ga. 436 (1), 438, 42 S.E. 738.
More than this, such possession by the landlord is not a legal fiction which exists merely as between the landlord and the cropper, but is an actual condition, recognized by law arising out of the relation of the parties, and affecting all persons who might seek to interfere with the crops until the right of the landlord therein has been satisfied. Such is the import of section 3705, the provisions of which are not restricted alone to the rights and liabilities of the parties referred...
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