55 Ga. 543 | Ga. | 1875
In May, 1873, Bostick mortgaged “six bales of cotton now growing and being grown and produced on the plantation in Lee county, cultivated by (himself) myself, and known as the Jesse Tucker plantation, to produce said six bales of cotton said advances,” (meaning thereby the consideration for which the note was given,) “ will be used and applied; said six bales of cotton are to average five hundred pounds each, to be well
No particular form is necessary in Georgia to make a mortgage: Code, sec. 1955. In form, therefore, this lien is a mortgage. But the Code of Georgia goes further and declares that “it may embrace all property in possession, orto which the mortgagor has the right of possession at the time:” Code, sec. 1954. This mortgagor had the possession and the right of possession to his growing crops, and these six bales were to be part of it. A mortgage may embrace a growing crop, the seed being sown and the crop growing: Butt vs. Ellett, 19 Wallace, 545; 23 Howard, 117; 2 Hilliard on Mortgages, 196, et seq. But our Code goes yet further, and declares that the mortgage “must specify the debt to secure which it is given, and the property upon which it is to take effect:” Code, section 1955. This paper specifies the debt to secure which it is given, but does it specify the cotton upon which it is to take effect? It is cotton made in 1873 on a certain plantation in the county of Lee; it is six bales of that cotton to weigh so much, and to be packed in a certain way; but which six bales is it? The first six gathered and ginned and packed, or another six? The levies are upon eight; which six of the eight levied upon are embraced in this mortgage, and may be, therefore, levied upon by this mortgage execution ? If these, six bales of cotton be so certainly specified and described in this mortgage that they can be ascertained by parol evidence — identified by testimony as the property mortgaged — then it would seem
Let the judgment be reversed.