101 Ga. 655 | Ga. | 1897
An execution founded upon a judgment rendered March 7, 1887, against Leonard in favor of Taylor, was levied, September 19, 1893, upon certain corn, fodder and cotton as the property of Leonard. A claim was interposed by Coney, Lovejoy & Co., who held an unrecorded bill of sale or deed, “drawn on an ordinary warranty deed blank,” and dated September 18, 1893, made to Coney, Lovejoy & Co. by J. M. McLemore, owner of the land upon which the crop was raised. This instrument purported, for and in consideration of $300 in cash, to convey two mules and “also my entire crops of corn, peas, potatoes, cane, cotton and seed grown by me and my tenants for the year 1893 in Pulaski county, Ga., on place purchased by subscriber from J. F. Pierce,” etc. On the trial the plaintiff introduced the fi. fa. under which the
The claimants' introduced the conveyance above mentioned. McLemore testified, that he had “agreed to rent J. J. Leonard forty acres of land and a mule for $85, or he would let him have the land and mule for a part of the crop he made on the land.' . . Leonard did not say which offer he would accept, and the trade was never again mentioned at all. I did not work any of his crops. I did not work the crops for him. I only worked my own crops. Leonard himself planted and worked the forty acres just as he saw fit. I did not tell him what to make. . . . Leonard surrendered up the crops to me before the levy was made. . . I furnished Leonard just as I did my other tenants. . . Leonard turned over the crops to me . ; because he owed me. I stood for him at Coney, Lovejoy & Co. . . I was the boss on the place and had possession of everything. I do not recollect of any rent note being given.” It was further shown that the deed was given to secure a debt of McLemore to_ Coney, Lovejoy & Co., and that no credit therefor had been given McLemore on the books of the firm. There was other testimony tending to show that Leonard had given McLemore a note for $85 for the rent of the land and mule.
The verdict was in favor of the claimant as to all of the property levied upon. The plaintiff made a motion for a new trial, upon the grounds that the verdict was contrary to law, contrary to the evidence, and contrary to certain specified portions of the charge of the court. The court granted a new trial as to the fodder involved, but refused a new trial as to the rest of the property levied upon. To this ruling the plaintiff excepted, alleging that the court erred in not granting a new trial generally. Of the grant of a new trial as to the fodder there is no complaint.
If the defendant in fi. fa. was a cropper, the title to the crop was in the owner of the land and was by him conveyed to the claimants, and the property was properly found not subject. If, however, the relation was that of landlord and tenant, the title to the crop was in the tenant, a conveyance of such crop by the landlord was inoperative to pass title, and the property should have been found subject. There was some scant evidence of a surrender of the crop by Leonard to McLemore to satisfy a debt of the former, but this we think immaterial, since, if the title was originally in Leonard, the property, even after it had been so “turned over,” would be affected with the lien of the judgment. The title conveyed by such surrender would he ineffectual as against the judgment.
For the use of the land the owner was, as we have just seen, to be compensated by the payment of rent; the land was in the possession of the tenant and the crop was entirely under his control. For advancements of necessary supplies, 'etc., made to the tenant, the landlord may have had a lien upon the crop made by the former; but the legal title to such crop was vested in the tenant and not in the landlord, and, as against a claim of title by the latter or those claiming in privity with him, the crop was subject to executions against the tenant.
For these reasons we think that the court erred in refusing to grant a new trial generally as to all of the property found not subject. Judgment reversed.