175 Ga. 294 | Ga. | 1932
The judgment in this case was reversed on June 14. A motion for rehearing was filed June 20, and was promptly granted. The writer of the opinion, being impressed with the fact that some phases of the case had not been sufficiently considered, joined in the request that the court grant the motion. The case has given the writer a great deal of concern, and he has expended a great deal of time and labor in the earnest endeavor to arrive at the correct result. The original opinion has been withdrawn, and after still further consideration another is substituted, containing additional discussion of the questions involved.
The first question to he decided is whether or not a crop of peaches is such a crop as is contemplated in the Civil Code, §§ . 3349, 3350, under which the mortgagee, now plaintiff in error,
Among many authorities on the subject we quote from the case of Sparrow v. Pond, supra, in which the Supreme Court of Minnesota dealt with a case concerning “crops,” and in the opinion said: “At common law those products of the earth which are annual, and are raised by yearly manuranee and labor, and essentially owe their annual existence to the cultivation of man, termed 'emblements/ .and sometimes 'fructus industriales/ were, even while still annexed to the soil, treated as chattels, with the usual incidents thereof as to seizure on attachment during the owner’s life, and transmission after his death. This class included grain, garden vegetables, and the like. On the other hand, the fruit of trees, perennial bushes and grasses growing from perennial roots, and called, by way of contradistinction, 'fructus naturales/ were, while unsevered from
From the above authorities we feel driven to the conclusion that a crop of peaches is not such a crop as is contemplated in the sections of our code above mentioned. Those sections deal with “crops” as “emblements.” However, that ruling in no sense is to be construed as a decision that the grower of peaches may not obtain credit and secure the indebtedness by a mortgage or a bill of sale, whichever may be deemed advisable, on a crop of peaches, to mature in the future. In the 'case of a peach crop, the advance or loan may be made to cover crops not made or gathered within the twelve months or calendar year, as prescribed in the Civil Code (1910), § 3349, Michie’s Code §§ 3310(1), 3348(1), respectively. The act of 1925 (Ga. L. 1925, p. 118; Michie’s Code § 3310(1)), like the Civil Code, §§ 3349, 3350, and Michie’s Code, § 3348(1), refers to annual crops. Section 3310(1) merely enables the producer to obtain advances covering crops to be grown by him within twelve months from the date of the bill of sale, although su'ch crops may not be planted or growing at such time. It provides that such' a bill of sale passes title, and that it is not superior to the lien of the landlord for rent and supplies and laborers’ liens. Such bill of sale must be made in accordance with Civil Code § 3306. The act of 1924 (Ga. L. 1924, p. 125; Michie’s Code § 3348(1)) merely
We next come to Civil Code (1910) § 3349. That section has reference to the lien of mortgages on crops given to secure the payment of money, supplies, and other articles of necessity to aid in the making and gathering of such crop. That section has force for only one purpose, and that is to provide that such mortgages "shall be prior to judgments of older date than such mortgagesSince the contest in this case is not between a crop mortgage and a judgment, that section has no application. "The superiority of a mortgage on crops to older judgments is a creature of the statute referred to, but there is no statute making the lien of mortgages on crops superior to the rights of the grantee in a deed conveying title which is of older date than the mortgage.” Virginia-Carolina Chemical Co. v. Floyd, 159 Ga. 555 (2) (126 S. E. 378). “The act of 1899 (Acts 1899, p. 78), which declared that the lien of mortgages given to secure the payment of debts for supplies, money, and other articles of necessity, including live stock, to aid in making and gathering such crops, shall be superior to judgments of older date than such mortgages, does not authorize the holder of such a mortgage to interpose a claim to the levy of an execution issued under an older judgf
Civil Code (1910) § 3350, also urged by defendant in error, provides: “In order for such lien to have such priority, the money or other supplies mentioned shall be furnished in the year in which such crop is grown, and shall be intended in good faith to be used in and for the purpose of making such crops.” It has reference to the lien created by Civil Code (1910) § 3349, in which it is made superior to judgments of older date. The two sections are part of the same enactment (Ga. Laws 1899, p. 78). Manifestly that section can not be disconnected from § 3349, and applies in contests between such crop mortgages and older judgments. The petition alleges that Evans Marketing Agency held a bill of sale to the peach crop, which was duly recorded. Under the allegations we are obliged to assume that the bill of sale was in every way in conformity to law, and therefore binding between the parties; indeed the holder of the bill of sale is endeavoring to enforce it; and the maker thereof has evidenced no disposition to dispute its validity. It is insisted that that contract is severable; that in terms it covers $410.73 advanced for the purpose of making the crop of 1928 and also a larger sum incurred antecedently; that petitioner admits the priority of the claim for the smaller sum $410.73, but denies that the claim for the larger sum can take precedence over the mortgage. Assuming that the contract is severable, the securities covering both amounts are superior to the mortgage of later date and recordation. We stated in the opinion originally rendered that the priority of the $410.73 was conceded by all parties. Therefore it is only necessary to deal with the question of priority of security for the antecedent debt.
The bill of sale itself is not before us, not being included in the record. The only information we have with regard to its terms is what is alleged in the petition. The petition does not allege that
Even if that were not so, the filing of a claim and bond released the peaches. The distributor sold them, received the proceeds, and presumably paid over such sums to the Credit Company as the latter was entitled to receive. The Credit Company is not. entitled to question the legality of the foreclosure. The mortgage was exe
Again, movant insists' that the court overlooked the fact that Hale, in the circumstances, had the right to regard the debt to Evans Agency as valid and not subject to set-off: for damages, “and obtain a second loan on the crop if a second lender was willing to take that chance.” We thoroughly agree to this, and nothing said in this or the previous ruling is contrary. Hale certainly had that right. Undoubtedly he availed himself of it. A second lender was willing to take the chance. It obtained what inevitably and legally followed, a second loan secured by a mortgage, valid but subject to the older and first lien of the bill of sale. There was no compulsion on the mortgagee. It was a business opportunity that was desirable according to his then judgment, and he acted accordingly. He can not complain that a court of equity must enforce the contract as it was made by the parties. “Equity is ancillary, not antagonistic to the law; hence equity follows the law where the rule of law is applicable, and the analogy of the law where no rule is directly applicable.” Civil Code (1910), § 4520.
Again, movant complains that the court overlooked the fact that the defendant in error does not claim to be an innocent party so far as the $410.73 advanced is concerned. The opinion as rendered contained the following: “It is assumed by all parties that at least Evans is entitled to be paid, out of the funds arising from the sale of the peach crop, the amount advanced to Hale for the making of the crop.” That language seems to specifically state the fact said to have been overlooked. If the levy on the peaches was void fox any reason, it is immaterial as to this proceeding. The peaches were released by the filing of the claim with the bond as required by law. The peaches have been converted into cash; the bond stands in lieu thereof.
We now come to the question which was overlooked in the previous decision. That question is whether the allegations and prayers of the petition are sufficient to authorize a court of equity to enjoin Federated Fruit & Vegetable Growers Inc., “the distributor,” from paying any money to the defendant on'account of the forthcoming bond, and “from receiving any money out of the credit or otherwise from the defendant on account of the ear of
The petition of the Credit Corporation makes all of the other parties defendants. There is no demurrer, so far as the record discloses, challenging the right of joining these parties, or the jurisdiction. Accepting the allegations of the petition as true, as did the trial judge on preliminary hearing for injunction, Evans Agency Inc. is indebted to the plaintiff. Evans Agency will be entitled to judgment against the bondsmen. These defendants, pursuant to the terms of the bond, will be compelled to pay the amount of their liability into court. The Credit Corporation can not avail itself of the process of garnishment at law to reach the amount due by the bondsmen, because the latter hold it subject to order of the court. Therefore it would seem that the trial judge correctly granted the injunction to prevent Evans Agency, admittedly insolvent, from realizing the amount of its claim against the bondsmen and the possibility of placing that sum beyond the reach of any judgment against the Agency by the Credit Corporation. The remedies at law being inadequate, it was within the power and jurisdiction of the court of equity to settle the whole controversy, to do equity between all the parties, and to hold and dispose of the amount to be paid in by the bondsmen, according to their respective rights. It is not necessary, and we do not decide that the facts alleged in the peti
Judgment affirmed.