Speer & Hooks v. Hart ( 1872 )

Montgomery, Judge.

This was an affidavit, made before Judge James M. Clark, of the South Western Circuit, to foreclose a factor’s lien on the crop and stock of the defendant, grown in Marion county, of the Chattahoochee Circuit.

It appears, from the affidavit, that the money was loaned by the plaintiffs to the defendant “for the purpose of furnishing supplies to enable him to make his crops for the present year.” Whether the money was ever so used or not, does not appear. It further appears, from the same source, that defendant “ gave to Speers & Hooks his draft for the payment of said sum, dated 2d May, 1870, in which, in order to secure the payment of said sum, costs and counsel fees, he gave them in writing a lien on his cotton and corn crops, growing, the present year, on his plantation, in Marion county, and a lien also on his stock of all kinds.” No copy of the draft containing the lien accompanies the record. Hence, the Court is compelled to look to the affidavit alone, for the provisions creating the lien. These are all of the material statements of the affidavit. It nowhere appears that the money was expended either for provisions or commercial manures, or, indeed, for any supplies. Nor does it appear, in the lien, that the money was to be so used, so far as we can gather from the affidavit. The affidavit is made to obtain execution, not only against the crop, but against the “ stock of all kinds,” and for counsel fees, amounting to $97.28, as well as the sum loaned. The execution follows the affidavit; and the sheriff levies upon ten bushels of corn, about twelve thousand pounds of seed cotton, and over four hundred bushels of cotton seed, besides nine horses and mules, one yoke of oxen, and several cattle. The debt, besides counsel fees, was for about $2000.

1. Section 1977 of the Code only gives a lien to factors upon the growing crops of farmers “ for provisions and commercial manures furnished;” and provides a mode of enforcement, to-wit, as steamboat liens are enforced, under section 1969. And it is under this law that this lien is attempted to be enforced. It would hardly be seriously contended that the foreclosure, execution and levy, so for as the stools is concerned, is regular. However good the lien given may be as a mortgage (and we have no means of ascertaining, for we have it not before us), the sections quoted do not provide for so foreclosing a mortgage upon personalty.

2. As to the crop, if provisions or manures had been furnished, the lien would have been good. The money was loaned “for the purpose of furnishing supplies to enable him to make his crops.” What kind of supplies ? Mules, wagons, ploughs, etc., are as much supplies to make a crop as are provisions. But suppose supplies mean provisions — were they ever bought with the money? The affidavit does not so state; nor does it mention that the draft, which seems to have been a reduction of the agreement of the parties to writing, even stated that the money was borrowed, or intended to be used for that purpose. The only knowledge we have upon the subject is, that the affidavit says the money was loaned for the purpose, and that afterwards, or about the time some agreement, in writing, in the shape of a draft, was entered into, of the terms of which we are not very clearly informed, or that it even intended to create a factor’s lien. As this is a summary proceeding, everything required by the Act to be done must appear to have been done; nor can its provisions be extended to purposes other than those mentioned in the Act.

3. During the argument of this case, the attention of the Court was not drawn to the Act of September 16, 1870, amendatory of section 1969 of the Code. Hence, the decision, from the bench, that the affidavit was not made before an officer authorized to foreclose the lien, under that section. It is, however, questionable whether, even under that section, the affidavit can be made before any Judge of the Superior Court in the State. It is unnecessary to discuss the question now! It may be considered still open. If the lien was a mortgage of personalty, as it was, if it was anything, as to the stock, clearly it was not foreclosed before the proper officer, unless Hart lives in Judge Clark’s circuit, and the usual order was passed, which cannot be so, as the affidavit is filed in the office of the Clerk of the Superior Court of Marion county, and he issues the execution: Code, section 3895.

Judgment affirmed.