1. Before the act of 1924 (Ga. L. 1924, p. 125; Code, § 67-1101) there could be no mortgage on a crop until it was planted.
2. But since the passage of that act a crop mortgage may be taken on a crop before its planting, by complying with the Code, § 67-1101, as follows: "A mortgage given to secure advances for the purpose of making and gathering crops shall embrace and cover crops of such mortgagor before the same are planted or growing, when it is so stipulated therein, within the limit of the calendar year such crops may be planted."
3. Since the act of 1924, supra, the legislature has passed the acts of 1925 (Ga. L. 1925, p. 118) and 1926 (Ga. L. Ex. Sess. 1926, pp. 44, 46; Code, § 67-1105), relating to bills of sale covering crops to be grown within twelve months from the date thereof, even though not planted, and providing a method of security for the money or supplies advanced for growing them. The bill of sale in question, relatively to the crops to be grown by the signer within twelve months from the date thereof, is as follows: "For and in consideration of the sum of ($402.57) four hundred two 57/100 dollars, Paul Williamson hereinafter called vendor, hereby bargains, sells and conveys unto Citizens Bank, said county, hereinafter called vendee. . . Also all crops grown by me in 1940 on Jane T. Paine place, 14 miles N.E. of Cairo in the N.E. corner Grady County, as follows: 22 acres tobacco, 24.0 acres cotton, 19.0 acres Spanish peanuts, 15.0 acres runner peanuts, 75.0 acres corn." *Page 396 The only item of property in the bill of sale in controversy here is the cotton. The bill of sale was taken before the crop in question was planted. The bill of sale was recorded before the purchase of the cotton by the defendant in error.
4. Such a description of the crops in question which had not been planted does not bring the bill of sale within the proviso of the Code, § 67-1105, "that the crop or crops shall be described in said bill of sale with the same particularity as the laws require for a crop mortgage, and the amount of said advances in money or supplies shall be definitely stated and fixed therein."
5. The court did not err in holding that the plaintiff's bill of sale was inadmissible as evidence to show title to the cotton crop in question in the vendee as against the defendant, an innocent third party in respect to the bill of sale, and in thereafter granting a nonsuit.
DECIDED MAY 21, 1942. Paul Williamson executed a bill of sale to plaintiff in error, a copy of which is as follows: "For and in consideration of the sum of ($402.57) four hundred two 57/100 dollars, Paul Williamson hereinafter called vendor, hereby bargains, sells and conveys unto Citizens Bank, said county, hereinafter called vendee. . . Also all crops grown by me in 1940 on Jane T. Paine place, 14 miles N.E. of Cairo in the N.E. corner Grady County, as follows: 22 acres tobacco, 24.0 acres cotton, 19.0 acres Spanish peanuts, 15.0 acres runner peanuts, 75.0 acres of corn. This bill of sale secures vendor's notes payable to vendee, as follows: note for $402.57, dated January 25, 1940, due August 15, 1940, and any renewal thereof, and all other debt or liability whatever of vendor now or hereafter held by vendee; and also secures vendor's undertakings . . to obtain permission from vendee before selling any of said property and to promptly deliver entire sale proceeds to vendee for credit on secured debt. If property conveyed is not live stock, to insure same for duration of secured loan against fire and theft, loss payable to vendee, in amount as nearly as possible of secured debt; to pay all taxes on said property before default; to keep said property in county of present location, and not allow same to be levied on; to pay when due each of above notes and each installment thereof. Vendor's failure to punctually comply with any of above undertakings automatically matures entire secured indebtedness. Vendor hereby warrants the title to said property, and represents that he is in possession of same, that it is unincumbered, and that *Page 397 no other person has any claim or interest therein. Witness vendor's hand and seal, this 25th day of January, 1940."
This bill of sale was recorded the following day. The only item of property in the bill of sale in controversy here is the cotton. The cotton produced on the acreage described was sold by Williamson to J. L. Pilcher Sons Inc. The bank instituted an action of trover against J. L. Pilcher Sons Inc. for the cotton thus grown and sold by Williamson. At the trial plaintiff offered in evidence the bill of sale. The officer of the bank who handled the transaction testified that the consideration of the note was an advancement to Williamson to make a crop on the premises described in said bill of sale. The defendant objected to the introduction of the bill of sale and to the testimony on the grounds that since the instrument itself did not specify the purpose for which the money was advanced, in connection with the further fact that it was conceded and recognized that the cotton was not planted at the time the bill of sale was executed, it was ineffectual and inoperative to put J. L. Pilcher Sons Inc., innocent third parties, on notice that the money was advanced for the making and producing of a crop. The testimony of the bank official was also objected to on the grounds that it varied the terms of the written contract and that it was incompetent to show the purpose for which the advances were made. The court sustained the objections, excluded the bill of sale and the testimony, and granted a nonsuit. Before the act approved July 15, 1924 (Ga. L. 1924, p. 125; Code, § 67-1101) there could be no mortgage on a crop until it was planted.Dawson National Bank v. Bank of Dawson, 42 Ga. App. 300,302 (155 S.E. 791). However, this Code section provides as follows: "A mortgage given to secure advances for the purpose of making and gathering crops shall embrace and cover crops of such mortgagor before the same are planted or growing, when it is so stipulated therein, within the limit of the calendar year such crops may be planted." The Code, § 67-1105, provides, "Where advances either of money or supplies or both are made for the purpose of planting, cultivating, making, or harvesting a crop or crops, the borrower or person to whom such money or supplies shall be furnished *Page 398 may secure the same by a bill of sale to secure debt under section 67-1301, covering the crop or crops to be grown by him within 12 months from the date of such bill of sale, although such crop or crops may not be planted or growing at the time of the execution of such bill of sale: Provided, that the crop or crops shall be described in said bill of sale with the same particularity as the laws require for a crop mortgage, and the amount of said advances in money or supplies shall be definitely stated and fixed therein." Even if we say the words "the same particularity as the laws require for a crop mortgage" in the latter section do not refer to the particular kind of crop mortgage referred to in the former section, although both sections are in chapter 67 of the Code and this chapter discusses only liens on crop mortgages and bills of sale as they relate to crops grown within twelve months from the date of such instruments, but on the contrary say that these words refer to the general crop mortgage discussed in a different chapter in the Code, yet, how can the bill of sale for a crop mortgage be brought within the Code, § 67-1105, unless the amount of advances in money for the purpose of making and gathering the crop in question be "definitely stated and fixed therein"? Definitely fixed where? We reply, in the instrument itself, not by extraneous testimony. And how can it be definitely fixed in the instrument itself unless it is stipulated therein how much — whether all or part of the money — was advanced in the making and gathering of the crop grown within twelve months from the date of the instrument? Thus, in order for the vendee in the bill of sale to bring himself within the provisions of § 67-1105, he must state therein, that is, in the bill of sale itself, that all, and if not all what part, of the advances were used in making and gathering the crop. The bill of sale in question does none of these things, and we do not think it comes under the provisions of § 67-1105. It was not constructive notice to an innocent third party.
The court did not err in holding that the plaintiff's bill of sale was inadmissible as evidence to show title to the cotton crop in question as against the defendant, an innocent third party in respect to the bill of sale, and in thereafter granting a nonsuit.
Judgment affirmed. Broyles, C. J., concurs.