Visage v. Bowers , 122 Ga. 760 ( 1905 )

Lumpkin, J.

(After stating the foregoing facts.) 1. It is contended by plaintiff in error, that section 3130 of the Civil Code of 1895, which provides for a recovery by the landlord from his •cropper of crops in certain cases by means of a possessory warrant, is to be construed in connection with section 4799, which provides generally when, by whom, and on what grounds possessory warrants may be issued; and that in order to proceed under the former section, some ground named in the latter must be alleged and shown. In this view we can not concur. Section 4799 has been the law of this State for many years. See act of 1821, Cobb’s Dig. 591. It provides for the issuance of a possessory warrant based upon an affidavit “ that any personal chattel has been taken, enticed, or carried away, either by fraud, violence, seduction or other means, from the possession of a party complaining, or that such personal chattel having recently been in the quiet, peaceable, and legally acquired possession of such complaining party, has disappeared without his consent, and as he believes has been received or taken possession of by the party complained against, under some pretended claim, without lawful warrant or authority, and that the party claiming does in good faith claim a title to or interest in the personal chattel, or the possession thereof.” In 1889 the legislature enacted a law which has been in part codified iu section 3130 of the Civil Code, which reads as follows: “ In all cases where a cropper shall unlawfully sell or otherwise dispose of any part of a crop, or where the cropper seeks to take possession of such crops, or to exclude the landlord from the possession of said,crops, while the title thereto remains in the landlord, the landlord shall have the right to repossess said crops by possessory warrant, or by any other process of law by which the owner of property can recover it under the laws of this State.” This created a new and distinct right on the part of landlords to proceed by possessory warrant under the circumstances referred to in that section. If, as contended by plaintiff in error, the landlord could not obtain a possessory warrant for the recovery of the crops except by making the affidavit provided for in § 4799, the mention of a possessory warrant in § 3130 would have been mere surplusage. If the landlord was in a position to adopt the remedy open to all persons under §4799, and could not obtain a possessory warrant except as therein provided, then § 3130 would not only be of no benefit to the landlord, but an actual injury, because it would impose upon him additional conditions for proceeding by possessory warrant to repossess himself . of crops. Without that section, if he were in a position to obtain the remedy under § 4799, he could do so. It was the evident purpose of the legislature, in passing the act of 1889, to confer upon the landlord an additional right to have the aid of a possessory warrant under the circumstances therein named. The assignment of error in the petition for certiorari makes this point distinctly. As stated in the answer of the magistrate, the motion to dismiss the warrant was based on the ground that “ it was not [the] proper course to pursue, and the affidavit was not definite.” This statement itself is rather indefinite, but in so far as it raises the point above discussed it is without merit. A statement in a motion, that “ the affidavit was not definite,” without pointing out any defect in it, is too general- to raise any distinct question.

2. According to the evidence of the plaintiff himself, as stated in the answer of the magistrate, the corn, fodder, and hay were divided, and were “ carried and put in the houses of plaintiff and defendant, said houses being the property, and on the land of” plaintiff. Thus far what was done appears to have been with the consent of both parties. It is true that the plaintiff further testified, that there was an understanding that the property should be kept in those houses until a final settlement, and that the defendant could not move the crops off the premises until the supplies were paid for in full, and therefore plaintiff claimed possession of the same. But the evidence does not disclose that anything further was done in the matter by either the plaintiff or the defendant prior to the suing out of the possessory warrant. Nor does it appear that the defendant was seeking to remove the property, or to do any of the acts mentioned in § 3130 of the code as furnishing ground for a proceeding by a possessory warrant. So far as the evidence in this record goes, therefore, the proceeding was not shown to be well founded, and the judgment awarding the property was not supported.

Judgment reversed.

All the Justices concur, except Gaudier, J. absent.