Penton v. Hall, 140 Ga. 235

Penton v. Hall

140 Ga. 235 | Ga. | 1913

Lumpkin, J.

(After stating the foregoing facts.) The case turns upon the clause of the agreement that “all increase in personalty and improvements made by said parties of the second part shall become and be the property of the said party of the first part until the notes and obligations herein specified of said parties of the second part are paid in full.” It is not contended that the cows claimed by the intervenor were received in exchange for any of those which were on the place at the time it was sold, or were bought to keep up the herd to the same number, or that they were the natural increase of the cows sold. They were cows which were on another place at the time the contract was made, and were subsequently moved to the place bought from the plaintiff. It was contended by counsel for the intervenor that the clause in regard to the increase referred only to the natural increase of the cows sold. But we do not think this is a proper construction. The expression, “all increase in personalty and improvements made by said parties of the second part,” includes something more than calves which might be borne- by the cows already on the place and included in the sale. Other personalty besides cows was sold, and this provision covered “all increase in personalty,” which included a wagon, buggy, cans, harness, umbrellas, and other articles, which, though unquestionably personalty, are not capable of having natural increase. The language is not fairly susceptible of that limited construction.

If we look to the evidence of the plaintiff, he testified that the clause was inserted so as to give him additional security for the notes of the purchasers of certain property from him. It was provided that any increase in personalty should become the property of Penton, the vendor, “until the notes and obligations herein specified of said parties of the second part are paid in full.” This form of words, containing a provision that property which had never belonged to the creditor should be his until the notes were paid, was appropriate for the creation of a mortgage. Ward v. Lord, 100 Ga. 407 (28 S. E. 446); Burkhalter v. Planters Loan and Savings Bank, 100 Ga. 428, 432, 433 (28 S. E. 236); Lubroline Oil Co. v. Athens Bank, 104 Ga. 376, 380 (30 S. E. 409); Scott v. Hughes, 124 Ga. 1000 (53 S. E. 453). But, except in the instances provided for by statute, a mortgage can not be given on property *239to be thereafter acquired. Civil Code, § 3256; Georgia Southern &c. Ry. Co. v. Barton, 101 Ga. 466 (28 S. E. 842); Lubroline Oil Co. v. Athens Bank, supra; Durant v. Duchesse D’Auxy, 107 Ga. 456 (33 S. E. 478). This was not a general description of property where parol proof could serve to apply the description to the property. But it was an effort to create a mortgage on property which the parties recognized could not then be mortgaged. The plaintiff testified in his own behalf that one of the purchasers stated that he could not give the plaintiff any security on those cows, because the title was not in him, but as soon as they were paid for they would be included; thus showing that the parties did not consider them as being then included.

It was contended that the intervenor was estopped from claiming title to the property, by reason of his representation that the cows belonged to the persons with whom the plaintiff was contemplating making a trade. In addition to what has been said above, it must be borne in mind that this was not a proceeding against all of the property of the purchasers, nor was the receiver appointed for all of their property. The action was for the purpose of foreclosing the written contract of purchase, and the receiver only had the right to the possession of those things which fell within the contract, and which he could seize for that reason. It was an equitable foreclosure, and, as to the cattle in controversy, it was an effort to foreclose a mortgage on property which might be acquired after the mortgage was given. We have shown that it was invalid as to such property. The evidence proved that the property belonged to the intervenor, unless he was prevented from claiming it by estoppel. Assuming that he made the representation stated by the plaintiff, this was not sufficient to change the mortgage, which was invalid as to this property, into a valid mortgage upon it; nor was it sufficient, in a proceeding of the character of the present one, to estop him from claiming that the property was not subject to a lien thus sought to be .created upon after-acquired property. As the receiver’s right to the possession of the cattle depended upon the validity of the mortgage sought to be given upon them, and we have held that such'lien was not valid, it follows that he was not entitled to hold them as against one who in fact had title to them.

Judgment on main bill of exceptions affirmed. Gross-bill of exceptions dismissed.

All the Justices, concur.