Williams v. Mitchem

151 Ga. 227 | Ga. | 1921

Lead Opinion

Atkinson, J.

1. The petition as amended alleged that the defendant was in possession of described property of stated value, to which the plaintiffs in good faith claimed title; and that he refused to surrender such possession on demand by plaintiffs. Included among the several properties so described in the petition was “ one bale of cotton in seed, gathered.” This part of the property was personalty; and relatively to that, the petition set forth a cause of action under the Civil Code, § 4483, which declares: “ In actions to "recover the possession of chattels, an alternative verdict in damages to be discharged on delivery of the property may be taken; but it shall not be necessary to prove any conversion of the property where the defendant is in possession when the action is brought.” It was not erroneous to overrule the general demurrer, which was' addressed to the petition in its entirety, and merely complained that the petition “ sets forth no cause of action,” that “ the allegations of the petition are not sufficient to support a recovery of the property sued for by the plaintiff,” and that “no title or right of title or right of possession of the property sued for is shown in the plaintiff.”

2. The burden was upon the plaintiffs to show title to the property. It is declared in the Civil Code, § 3707: “Where one is employed to work for part of the crop, the relation of landlord and tenant does not arise. The title to the crop, subject to the interest of the cropper therein, and the possession of the land remain in the owner.” In § 3705 it is declared: “Whenever the relation of landlord and cropper exists, the title to and right to control and possess the crops grown and raised upon the lands of the landlord by the cropper shall ,be vested in the landlord until he has received his part of the crops so raised, and is fully paid for all advances made to the cropper in the year said crops were raised to aid in making said crops.” In Hancock v. Boggus, 111 Ga. 884 (36 S. E. 970), it is said: “ When it is shown that a landowner entered into a contract with another person, by the terms of which the owner was to furnish the land, stock, tools, and supplies to malee a crop, and the other person was to do the work and receive a part of the crop so made, the legal relation which existed between them was that of landlord and. cropper.” See also Hackney v. Stale, 101 Ga. 512, 516, 517 (28 S. E. 1007). The contract between the plaintiffs and the defendant is set out in the statement of facts, and need not be repeated. It established the relation between the parties, and, properly construed, created the relation of landlord and cropper, as defined in the Civil Code, § 3707. Such being the relation between the parties, legal title and the right to control and possess all the crops raised on the place by the defendant was vested in the plaintiffs until they received their part of the crops and were fully paid for all advances made to the cropper during the year to aid in making the crops. The defendant, without consent of the owners, could not gather, carry away, and sell a portion of the crop and convert the proceeds to his own use, without being guilty of a wrongful conversion.

3. The plaintiffs introduced evidence to the effect that of the property described in the petition the defendant carried away and sold one bale of cotton for $191, before the suit was instituted. This was sufficient basis for a verdict for the plaintiffs, relatively to that part of the property; and it was erroneous to grant a nonsuit and dismiss the entire action.

4. The greater part of the property sought to be recovered consisted of crops attached to the soil, most of which was mature. The Court of Appeals ruled that such crops were a part of the realty, and therefore that the plaintiffs could not invoke the remedy provided in the Civil Code, § 4483, which applies only to actions for recovery of personalty. That ruling is consonant with the decision of this court in the case of Newton County v. Boyd, 148 Ga. 761 (98 S. E. 347), where it was held: “A crop of corn not detached from the soil, whether mature or immature, is a part of the realty, and passes by sale of the land without contractual reservation of the crop. Civil Code, § 3617; Pitts v. Hendrix, 6 Ga. 452; Frost v. Render, 65 Ga. 15; Bagley v. Columbus Southern Ry. Co., 98 Ga. 626 (25 S. E. 638, 34 L. R. A. 286, 58 Am. St. R. 335). See also 8 R. C. L. 360, 371, §§ 6, 16; Cobb’s Law of the Farm, 13.” As to this part of the property trover would not lie, but that would not afford ground for nonsuiting the entire action, the plaintiffs having alleged and proved a case for recovery as to some part of the property, as heretofore indicated.

5. In the light of the several rulings in the preceding divisions, it is unnecessary to rule on the assignments of error on the admission of evidence. The same questions will not likely arise when the case is returned to the trial court.

6. Another assignment of error challenges the correctness of the judgment on the bond. The Civil Code, § 5150, declares: “ Where any person who is about to commence an action for the recovery of personal property shall require bail, such person, his agent, or attorney shall make affidavit that the property is in the possession, custody, or control of the defendant, and that he has reason to apprehend that the said personal property has been or will be eloigned or moved away, or will not be forthcoming to answer the judgment, execution, or decree that shall be made in the case; and shall also state in his affidavit the value of the same, and the amount of hire claimed, if any, and add that he does verily and bona fide claim said personal property, or some valuable interest therein.” § 5151 declares : “ When such affidavit is made as prescribed in the preceding section, it shall be filed in the clerk’s office of the court to which said petition, bill, or other process may be returnable, and a copy thereof affixed to the original petition, or process, and to the copy or copies thereof; and it shall be the duty of the sheriff, or other lawful officer serving such petition or other process, to take a recognizance payable to the plaintiff or complainant, with good security, in double the amount sworn to, for the forthcoming of such personal property to answer such judgment, execution, or decree as may be rendered or issued in the case, and such security shall be bound for the payment of the eventual condemnation-money, for which judgment may be signed up against the defendant and said security, and execution had thereon without further proceeding.” In § 5152 it1 is provided: “ And upon defendant failing to give such security, whether the affidavit be made at the commencement of the suit or pending the same, the property shall be seized and taken by the sheriff or other lawful officer and delivered over to the plaintiff or complainant, his agent or attorney, upon his entering into like recognizance with security.” These sections are to be construed in connection with section 4483, quoted in the first division, and apply only in actions for the recovery of personalty. If the action had been called trover b.ut was for recovery of a- tract of land, palpably it would not have been the kind of action contemplated by the statute, and a so-called “ forthcoming bond ” for the production of the property to answer the judgment of the court would not be a statutory bond, within the meaning of the law. So, also, where the action is for recovery both of personalty and realty, a “ forthcoming bond ” given for all the property at twice its value is not the bond contemplated by the statute. In the latter case there is no authority of law for bail relatively to the realty. Bond is required by the statute relatively to personalty, but in such ease the amount of the bond is twice the value of the personalty. Where a “ forthcoming bond” is given for both realty and personalty, the court can no more render a summary judgment under the Civil Code, § 5151, against the principal and sureties on the bond, than it could, in an action of trover under the Civil Code, § 4483, render judgment for recovery of the realty. Roney v. McCall, 128 Ga. 249 (57 S. E. 503); Fitzgerald Military Band v. Colony Bank, 115 Ga. 790 (42 S. E. 70). In the case of Glover v. Gore, 74 Ga. 680, it appears that an action was instituted to recover certain crops grown on specified land, some of which had been gathered and some was still attached to the soil. The plaintiff sued, out' bail in trover under the statute which is now in Civil Code, §§ 5151, 5152. The defendants refused to give bail, and thereupon the plaintiff gave bond and took possession of and gathered the crops. The plaintiff having been nonsuited, the court did not, as in the present case, enter summary judgment against the plaintiff and his sureties on the forthcoming bond; but the defendants proceeded with this common-law remedy by separate action on the bond, and were allowed to recover. See Stephens v. Crawford, 3 Ga. 499 (3); Justices v. Ennis, 5 Ga. 569; Wall v. Mount, 121 Ga. 831, 834 (49 S. E. 778), and cit.; Mount v. Wall, 127 Ga. 211 (56 S. E. 298); Spooner v. Smith, 134 Ga. 323 (67 S. E. 813).

It was erroneous for the trial judge, after nonsuiting the plaintiffs, to enter summary judgment against the principals and sureties on the bond, for an amount alleged in the affidavit for bail to be the value of the realty and personalty. Should the defendant bring a separate action on the bond on the basis that the principals obtained possession of all of the property under the bond, and that it was valid as a common-law bond, the rights and equities of all parties involved in the crops which were taken possession of by the principals named in the bond could be adjusted.

The case differs on its facts from Marshall v. Livingston, 77 Ga. 21; Smith v. Adams, 79 Ga. 802 (5 S. E. 242); Lauchheimer v. Jacobs, 126 Ga. 261 (5), 268 (55 S. E. 55); Pope v. Scott, 143 Ga. 275 (2), 276 (84 S. E. 582); Petty v. Piedmont Fertilizer Co., 146 Ga. 149 (2), 151 (90 S. E. 966), in each of which the action was properly brought in trover for the recovery of personalty, and the bond given was in compliance with the statute.

The judgment of the Court of Appeals, affirming the judgment of nonsuit and the summary judgment of the trial court on the bond, must be reversed.

Judgment reversed,

All the Justices concur.

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Concurrence Opinion

George, J.,

concurring specially. Matured crops, ready to be harvested, though standing in the field, when produced by annual cultivation, are no part of the realty. Such crops must, for most civil purposes, be deemed personalty. This is a workable rule, and the only workable rule. A distinction is to be observed between the natural growth of the soil, such as trees, grasses, and the like, which at common law are parts of the soil, and products the result of the annual labor of man in sowing and reaping, planting and gathering. In my opinion, therefore, the plaintiffs’ petition set forth a cause of action for recovery of the property described therein, and should not have been dismissed on demurrer.

The plaintiffs’ petition was for the recovery of the. crop as personalty. One of them made the affidavit prescribed by statute, to require the defendant to give bail. The defendant having failed to make bond, the plaintiffs executed a bond and took possession of the crops. This court has uniformly held, that a party will not be permitted to assert inconsistent positions, and is bound by .solemn admissions in judicio. In the opinion of -the writer, the court is not authorized to afford to the plaintiffs relief against the judgment on the bond, on the theory indicated in the 6th division of the decision. But, for the reasons already stated, the plaintiffs were entitled to recover the property sued for, under the allegations of the petition. I therefore concur in the judgment of reversal, but not in the rulings stated in the 4th and 6th headnotes, nor in the reasoning set out in the corresponding divisions of the opinion of the court. ,