Citizens Bank v. J. L. Pilcher & Sons Inc. , 67 Ga. App. 395 ( 1942 )

I can not agree to the majority opinion. It will be noticed that the Code, § 67-1101 (Ga. Laws 1924, p. 125), makes no mention that the amount be specified. Before 1924 the law did not permit mortgages to be taken on crops before they were planted, but they were taken after the crops were up and growing, for the purpose of securing advances and supplies for making the crops. Certain priorities were provided by statute. To any one who is familiar with the practice which prevailed in taking mortgages on growing crops to secure advances for supplies it is recognized that it was the custom of the lender (bank or supply merchant) to take a mortgage for a nominal sum and provide that it secured any future advances of money and supplies for the purpose of making the crop. Such an instrument gave the lender a priority as to a lien on the crop inferior only to certain designated prior liens (such as a lien for rent, and supplies furnished by a landowner). Oftentimes a farmer was in need of funds for the purpose of securing fertilizer, seed, and the like, before the crop was up and growing sufficiently to constitute a subject-matter of a loan; therefore, to assist the farmer during the period of preparing his land and planting his crop, the legislature passed the act of 1924 (Code § 67-1101). The practice which theretofore prevailed of taking a "blanket mortgage" and not specifying an amount to be advanced was continued under the provisions of the act of 1924 covering crops before planting. Such practice worked a great hardship on the farmer. There was no definite amount stated in the crop mortgage that the farmer had signed covering money borrowed and which would be a lien on his crop. Often-times the lender who took the crop mortgage, for reasons satisfactory to himself, would not advance sufficient funds under the blanket mortgage to complete the cultivation and gathering of the crop. The farmer could not very well secure additional aid from other sources for the very pertinent reason that no definite amount was specified in the instrument evidencing the crop mortgage. Hence we think it was to cure this evil, and one other which we will discuss hereinafter, that the legislature in 1925 and 1926 passed the acts (Code § 67-1105) with reference to legalizing the taking of bills of sale on crops before they are planted. The latter act provided: (1) The instrument may secure advances for money or supplies for making unplanted crops within twelve months from the date of the bill of sale. (2) "Crop or crops shall be described in said bill of sale with the same particularity as the laws require for a crop mortgage." (3) The amount of said advances in money or supplies shall be definitely stated and fixed. (4) "Bill of sale shall pass title, . . and shall not be construed to be a mortgage." (5) Fixes priorities specified in the act.

It must be kept in mind that the only instance in which a valid bill of sale can be given on an unplanted crop is for advances to make it. If this be true, is it not mere surplusage to state in the instrument itself that such is the purpose? If the crop is up and growing a bill of sale or mortgage may be given for any purpose, but to have certain priorities the statute says the instrument must contain the provision that the advancement was for the purpose of securing supplies. If the crops are not planted the only purpose for which a bill of sale can be given is for advances to plant and cultivate and gather. The instrument was executed on January 25, 1940, it was recorded the following day, the property (tobacco, cotton, Spanish peanuts, runner peanuts, and corn) was specifically described, and the amount secured was definite as required by the statute, $402.57. It can hardly be contended that the crops were planted and growing. This statute is in derogation of the common law and must be strictly construed. The writer does not think this court is authorized to read into the statute that which it does not contain. As stated, we think the intention of the legislature in passing this statute was to put third parties on notice as to the amount advanced. This would enable the farmer, if such amount was insufficient, to go elsewhere and execute an additional instrument for further financing. Secondly, it is reasonable to suppose that the legislature provided that a bill of sale instead of a mortgage might be given on an unplanted crop in order that the title could pass under the bill of sale and be superior to certain other statutory claims, year's support and the like. This likewise would inure to the benefit of the farmer because he could more easily obtain additional advances before his crop was planted by having the authority of law to execute an additional instrument for further financing. I can not see any good reason to hold that a bill of sale executed under the statute in question would have to contain, to make it valid as against third persons, the stipulation that it was executed for supplies and advances for planting, cultivating, and gathering the crop. To read this into the statute we would have to assume that the definite amount of $402.57 was not for advances for the purpose of making the crop (the only purpose for which the statute provides that it may be executed on an unplanted crop.) If not made for this purpose, as to third persons it would be fraudulent and void. This would be a matter of defense. It is not so much as to what the instrument stipulated it was for that makes it valid; it is whether the $402.57 was advanced for such purpose. If it was not advanced for such purpose it would not matter whether the instrument said it was for advances or not. The writing of the purpose in the instrument could not make it such an advancement or give it such priority of lien as the statute intended touching an unplanted crop. It seems to me that the reasoning could work as well the other way around. If the money was advanced for the purpose of making the crop, and the amount was definite, and the bill of sale complied with all the plain express requirements of the statute, as is the case with the instrument before us, then why would it not be permissible to prove that the definite amount specified in the instrument was advanced for such purpose? The writer thinks that the defendant in error was on notice. It is no answer to say that because one legislature in 1924 wrote into an act with reference to a mortgage given on an unplanted crop for an advancement that the purpose should be stated, and a subsequent legislature did not see "eye to eye" as to the necessity of writing such stipulation in a bill of sale, that the bill of sale is ineffectual unless the same feature is written in the bill of sale as to an unplanted crop.

In my opinion the court erred in not permitting the plaintiff in error to introduce the instrument itself, and oral testimony to sustain the position that the amount in question was advanced for the purpose of planting, cultivating, making, and gathering the crop.