Noyes & Company vs. Jenkins.

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 decide 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 grow from seed sown, the seed not being sown at the date of the contract. In the supreme court of the United States in Butt vs. 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 vs. W. E. & C. L. Moore, it was held by the supreme court of Arkansas that an action to recover an unplanted 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 execu

Greenway et ux. vs. Goss.

ted on an unplanted 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 vs. Tucker, decided at the last term, it was held by this court that a mortgage upon a part of a crop actually growing, capable of certain ascertainment, was good. But we have not found a case where title to a crop, the seed not even being at the time of the sale in the ground, passed so as to authorize a recovery in trover. The authorities are uniformly, we believe, to the effect of the remark made in the case cited from the Arkansas supreme court, that there must be à potential existence at least of the thing sold; and this potential existence comes into being only when the crop begins to grow, or at farthest, when the seed is put where it can germinate and begin to grow, in the soil, and under the rain and sunshine.

We think, therefore, as this crop of cotton was not in any actual or potential existence, inasmuch as it had not germinated, or even been put where it could germinate, no title passed, and there can be no recovery in trover. Judgment affirmed.

W. F. M. GREENWAY et ux., plaintiffs in error, vs. NATHANIEL H. Goss, defendant in error.

Complainant conveyed land to defendant by warranty deed taking note for purchase money. Defendant, for the purpose of defeating the collection of the note, conveyed to a bona fide purchaser without notice, in exchange for other land. He then induced his wife to have latter property covered by a homestead. Complainant filed his bill to make the homestead subject to his claim. A demurrer thereto should have been sustained upon the sole ground that it appeared that the debt sought to be enforced was contracted prior to the adoption of the constitution of 1868, and therefore the homestead did not prevent the sale of the property under final process.

Equity. Homestead. Before Judge KNIGHT. Superior Court. May Term, 1875.

Fannin

Greenway et ux. vs. Goss.

Reported in the decision.

THOMAS F. GREER; C. D. PHILLIPS; H. P. BELL, for plaintiffs in error.

WIER BOYD, for defendant.

WARNER, Chief Justice.

This was a bill filed by the complainant against the defendants for equitable relief in which the following facts are substantially alleged: In March, 1866, the complainant sold to one Greenway a settlement of land in Dawson county for $700 00 and took his note for the purchase money making him a warranty deed to the land. After the maturity of the note given for the land, suit was instituted thereon, and judgment obtained in April, 1872. The complainant also alleges that the defendant, for the purpose of defeating the collection of his debt by the sale of said land under the execution issued on his judgment, fraudulently exchanged the same with one Forester, for a settlement of land in Fannin county, said Forester having no notice that the purchase money was due for the land in Dawson county. Soon after the exchange of lands as aforesaid, the defendant went into the possession of the land in Fannin county, and for the purpose of defeating the collection of complainant's debt, procured his wife, Drucilla, to apply for and obtain a homestead on the land in Fannin, which was all the property owned by defendant; he is insolvent, and said exchange of lands as before stated, between defendant and Forester, was made for the express purpose of defeating the collection of complainant's debt due for the purchase money of the land in Dawson county; the sheriff of Fannin county doubts his right and authority to levy the complainant's execution upon the homestead land in Fannin county and sell the same for the purchase money due for the land in Dawson county, and has refused to do so, although the same is equitably bound for the payment thereof. Wherefore the complainant prays for a decree that the homestead

Baggs vs. Baggs.

land in Fannin county may be sold and the proceeds thereof be applied to the payment of his judgment debt for the purchase money due for the land in Dawson county, which was exchanged for the land in Fannin county on which the homestead is located. To this bill of the complainant the defendants demurred for want of equity, and because the complainant had a complete remedy at law. The court overruled the demurrer and the defendant excepted.

If the contract on which the complainant's judgment is founded had been made subsequently to the adoption of the constitution of 1868, allowing the homestead exemption, we should have sustained the complainant's bill in view of the allegations contained therein, but inasmuch as the contract of indebtedness was made prior to 1868, the homestead exemption on the land in Fannin is not valid as against the complainant's judgment founded on that contract, and the plain, simple remedy for the complainant is to levy his execution upon the land in Fannin county, and have the same sold in satisfaction thereof. If the sheriff shall refuse to levy the execution on the land when instructed to do so, the law provides an ample remedy against the sheriff for his neglect of duty.

Let the judgment of the court below be reversed.

JOHN BAGGS, plaintiff in error, vs. MARY E. BAGGS, defendant in error.

An agreement was entered into by husband and wife whereby to settle unfortunate difficulties between them. It was agreed that they should mutually occupy and enjoy a certain house and lot, with certain limitations over in case of death. Subsequently the wife sued the husband for divorce, which was granted with liberty to each to marry again. Pending the divorce, counsel agreed that the question of property should be left open without prejudice to either party. The wife, having failed by writ of partition to divide the property, brought her bill in equity and alleged that the husband was in the sole occupancy and use of the house and had enjoyed all the rents thereof since the divorce, was insolvent and unable to respond to her in damages, and prayed for an injunction, and the appointment of a

Stafford vs. The State of Georgia.

receiver to take charge of the property and hold the future rents subject to the order of the court. The court granted the prayer, and directed the receiver to pay half the rents in future to the husband, and retain the other half to await the final decree:

Held, that there is equity in the bill, and that the court did right in appointing a receiver to take charge of the property, and to preserve the future rents to await the final decree.

Equity. Husband and wife.

Receiver.

Before Judge BUCHANAN. Troup Superior Court. November Term, 1875.

Report unnecessary.

B. H. BIGHAM; B. L. HARRIS, for plaintiff in error.

FERRELL & LONGLEY, for defendant.

JACKSON, Judge.

This case was before this court on the application of the defendant in error for a partition of the property in dispute. It was then held that she could have relief in equity; at least it was so strongly hinted that counsel could not well fail to see the drift of the mind of this court as then constituted. We agree with those hints, and as the facts are sufficiently indicated in the head-note to explain fully the principle decided, we deem it unnecessary to elaborate them here. If other parties are necessary, they can be made when the case goes back, before the final hearing: 54 Georgia Reports, 95. Judgment affirmed.

JACOB STAFFORD, plaintiff in error, vs. THE STATE OF

GEORGIA, defendant in error.

1. Upon a trial for the offense of murder, where the only incentive to the act appears to have been robbery, it was competent to show that the defendant, some week or ten days prior to the homicide, proposed to a witness to rob an old man and woman, who lived on the edge of town and who had money "piled up."