Williams v. Mitchem

• Decision Date: 08 April 1920
• Docket Number: (Nos. 11192, 11216.)
• Citation: 25 Ga.App. 138,102 S.E. 870
• Parties: WILLIAMS et al. v. MITCHEM. MITCHEM . v. WILLIAMS et al.
• Court: Georgia Court of Appeals

25 Ga.App. 138

102 S.E. 870

WILLIAMS et al.

v.MITCHEM.

MITCHEM .

v.WILLIAMS et al.

(Nos. 11192, 11216.)

Court of Appeals of Georgia,

Division No. 2.

April 8, 1920.

(Syllabus by the Court.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Real Property.]

Error from City Court of Morgan; A. L. Miller, Judge.

Action by T. J. Williams and another against O. E. Mitchera. A judgment of nonsuit was entered, and both parties bring error. Judgment on main bill of exceptions affirmed, and cross-bill dismissed.

C. J. Taylor, of Morgan, and R. R. Jones, of Dawson, for plaintiffs in error.

B. W. Fortson, of Arlington, for defendant in error.

SMITH, J. T. J. Williams and Y. D. Mc-Collum brought an action of trover against C. E. Mitchem to recover certain described crops, not detached from the soli, alleged to be of the value of $10,000. The plaintiffs at the time of filing their trover suit also filed an affidavit to obtain bail. The defendant failed to give bond, and the plaintiffs, exercising their statutory right, gave the required bond, took possession of the crops, and gathered them. The crops were all matured, but were in the fields ungathered. The trial of the trover action resulted in a nonsuit, and the court, upon motion of defendant's counsel, entered judgment against the plaintiffs and the sureties on their bond for the sworn value of the property as set out In the bail affidavit made by the plaintiffs, with interest from the date of conversion. The plaintiffs excepted to the judgment of nonsuit and to the judgment on the bond, and the case was duly brought to this court for review.

What seems to us to be the main and controlling question in the case is whether or not bail trover will lie to recover matured but ungathered crops. The fact that this question is not argued or referred to in the briefs of counsel does not, of course, preclude us from deciding the case upon this theory, for this court is not concerned with the reason given for or against the judgment of nonsuit, but with the correctness of that ruling.

In determining whether trover lies, there Is often much confusion as to whether the property in question is personalty or realty; and different conclusions have been reached by text-writers and appellate courts in determining whether ungathered crops are personalty or realty. Since, however, no good purpose would be served by citing or discussing cases from states other than Georgia on this subject, and certainly it would be Impracticable to try to reconcile the many decisions, both English and American, in which this question has been dealt with, we will confine our discussion to the law of this state relating to the classification of crops not detached from the soil.

In order to avoid possible confusion, we deem it necessary to state at the outset that it is wholy immaterial whether the crops in this case were growing or matured, for the Supreme Court has held in the recent case of Newton County v. Boyd, 148 Ga. 761, 98 S. E. 347, that—

"A crop of corn, not detached from the soil, whether mature or immature, is a part or the realty, and passes by sale of the land without contractual reservation of the crop."

Section 3617 of the Civil Code defines realty as follows:

"Realty or real estate includes all lands and the buildings thereon, and all things permanently attached to either, or any interest therein or issuing out of or dependent thereon."

With this definition before it (Civil Code 1882, § 2218), the Supreme Court in the case of Coody v. Gress Lumber Co., 82 Ga. 793, 10 S. E. 218, held that trees growing upon land were a part of the realty; and that, under the statute of frauds, a sale of them must be in writing. In Frost v. Render, 65 Ga. 15, it appears that a sheriff sold under execution land upon which was growing crops, and it was there held that—

"A levy being on certain land as the property of the defendant in fi. fa., a sale under such levy carries with it the crop growing on the land, and the sheriff cannot limit the sale by an announcement that the rent of the current year is reserved."

The holding was based on the principle that the law considers growing crops part and parcel of the land itself. Again we find that in the early case of Pitts v. Hendrix, 6 Ga. 452, it was decided that—

"A growing crop of corn, after it is laid by, and before maturity, passes to the purchaser of the land."

This case was cited and followed in Ferguson v. Hardy, 59 Ga. 758, wherein the question arose as to whether the title to crops growing on lands sold under execution passes to the purchaser as against the defendant in fi. fa. In the case of Dollar v. Roddenbery, 97 Ga. 148, 25 'S. E. 410, it was held that a purchaser of lands did not acquire title as against a tenant who planted certain crops on the land, and whose estate was suddenly terminated by a sale of the lands. This decision was based upon the common-law doctrine that the tenant was entitled to the crops as "emblements, " and it was unnecessary to decide whether the crops were to be considered as personalty or realty, for no greater interest than the landlord had therein could be sold as his property, and of course the purchaser got only that which was in fact sold. In a contest between a judgment creditor of a tenant and one who claimed cotton levied on by virtue of prior purchase from the tenant of his unmatured crops, and who had accordingly entered upon the land, cultivated the crops, and gathered them when ripe, the Supreme Court said:

"Before maturity, the crops only constitute an element of value, and are not themselves distinct chattels. We know of no ruling to the contrary by this court." Scolley v. Pollock, 65 Ga. 339.

In that case the case of Pitts v. Hendrix, supra, was cited with approval.

Another case which bears somewhat upon the subject under consideration Is that of Hamilton v. State, 94 Ga. 770, 21 S. E. 995, wherein the accused was charged with having fraudulently sold and disposed of personal property upon which she had previously given a mortgage. The point raised was thata mortgage given upon a growing crop could | not properly be treated as a mortgage upon personalty; and the Supreme Court, in dealing with this question, drew the distinction between growths that are fructus naturales and those designated as fructus industriales. However, what was said as to this distinction was merely obiter, for, as will be seen from the concluding remarks of the opinion then delivered, the court rested Its decision, not upon the character of the...