25 Ga. App. 138 | Ga. Ct. App. | 1920
T. J. Williams and Y. D. McCollum brought an action of trover against C. E. Mitchem to recover certain described crops, not detached from the soil, alleged to be of the value of $10,000. The plaintiffs, at the time of filing their trover suit, also filed an affidavit to obtain bail. The defendant failed to give bond, and the plaintiffs, exercising their statutory right, gave the required bond, took possession of the crops, and gathered them. The crops were all matured, but were in the fields ungathered. The trial of the trover action resulted in a non-suit, and the court, upon motion of defendant’s counsel, entered
What seems to us to be the main and controlling question in the ease is whether or not bail-trover will lie to recover matured but ungathered crops. The fact that this question is not argued' or referred to in the briefs of counsel does not, of course, preclude us from deciding the case upon this theory, for this court is not concerned with the reasons given for or against the judgment of nonsuit, but with the correctness of that ruling.
In determining whether trover lies, there is often much confusion as to whether the property in question is personalty or realty; and different conclusions have been reached by text-writers and appellate courts in determining whether ungathered crops are personalty or realty. Since, however, no good purpose would be served by citing or discussing cases from States other than Georgia on this subject, and certainly it would be 'impracticable to try to reconcile the many decisions, both English and American, in which this question has been dealt with, we will confine our discussion to the law of this State relating to the classification of crops not detached from the soil.
In order to avoid possible confusion, we deem it necessary to state at the outset that it is wholly immaterial whether the crops in this case were growing or matured, for the Supreme Court has held in the recent case of Newton County v. Boyd, 148 Ga. 761 (98 S. E. 347), that “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.” Section 3617 of the Civil Code defines realty as follows: “Kealty or real estate includes all lands and the buildings thereon, and all things permanently attached to either, or any interest therein or issuing out of or dependent thereonWith this definition before it (Civil Code of 1883, § 3318), the Supreme Court in the ease of Coody v. Gress Lumber Co., 82 Ga. 793 (10 S. E. 218), held that trees growing upon land were a part of the realty; and that, under the statute of frauds, a sale of them must be in writ
Another case which bears somewhat upon the subject under consideration is that of Hamilton v. State, 94 Ga. 770 (21 S. E. 995), wherein the accused was charged with having fraudulently sold and disposed of personal property upon which she had previously given a mortgage. The point raised was that ’a mortgage given upon a growing crop could not properly be treated as a
Since it seems to be indisputable, from what is said above, that' crops not detached from the soil, whether mature or immature, cannot properly be classified as personalty, under the law obtaining in this State, it follows that the plaintiffs in this case could not legally maintain bail-trover to recover ungathered crops. Consequently it cannot be said that the judgment awarding a non-suit was error.
Moreover, even if the crops in this ease were to be considered as personalty, there was no sufficient evidence of ^ conversion
2. The nonsuit being proper, the defendant had his choice of one of three remedies, to wit: A judgment (1) for the specific property, or (2) for the market value of the property at the date of the conversion, with the addition of hire or interest, or (3) for the highest proved value of the property between the date of the conversion and the date 'of the trial, without hire or interest. Kaufman v. Seaboard Air-Line Ry., 10 Ga. App. 248, 250 (73 S. E. 592); Barfield Music House v. Harris 20 Ga. App. 42 (92 S. E. 402). The defendant took advantage of the second remedy and asked for judgment for the value placed upon the property by the plaintiffs in their affidavit for bail. The court allowed judgment to be entered upon the bond, for the sworn value of the property with interest from the date of the conversion. The plaintiffs excepted to this action of the court, but their exception is, we think, without substantial merit, for, as was said •by Judge Powell in the case of Kaufman v. Seaboard Air-Line Ry., supra: “The defendant in any of these events may ask for the question of value to be submitted to the jury for assessment; but, if he is content with the value sworn to by the plaintiff in his affidavit for bail, verdict is unnecessary, and he may, upon the sworn admission of the plaintiff as contained in this affidavit, take judgment against the plaintiff and his sureties for the sum stated in the affidavit, with interest thereon.” See also, in this connection, Mallary v. Moon, 130 Ga. 591 (61 S. E. 401);
It is contended that the general rule as above stated and upon which our affirmance of the judgment for $10,000 is based does not apply, and would work a grave injustice in this case, because the defendant had at most only a part interest in the crops in controversy; but as was- said by Judge Powell in the Kaufman case, supra, “the rule does apply, and no injustice is done. The plaintiff took the goods from the defendant’s possession without having the right to do so. When his lack of right was judicially established, it was obligatory on him, under his replevy bond, to put the property or its value in money back into the defendant’s hands. When, under the restitution, the defendant company takes money instead of the property, it will hold the money on terms like those on which it held the property. The defendant will hold the money not for its own ultimate benefit, but for its protection.” Therefore in the present ease the plaintiffs may take, such steps in law or equity as shall be necessary to give adequate protection to all parties concerned. The only real ultimate hardship, if any, on the plaintiffs is that they will have
Judgment on the main bill of exceptions affirmed; cross-bill dismissed.