This was an action of trover brought by Gilbert M. Stokes against Hollis for the recovery of cotton in the seed, enough to make eighteen bales.
It appears that Stephen S. Walker had rented from Hollis his plantation, for the year 1869, and while in possession as such tenant, in February of the same year, entered into an instrument, in writing, with Stokes, by which, and in consideration of the sum of $2 00 he sold Stokes his crop growing and to be grown upon the place, together with the stock and farming implements thereon. Walker agreed to remain on the place as bailee and manager for Stokes, and to cultivate the same under his directions; and the conveyance provides that he, Stokes, is not to be liable for mismanagement of the crops, or any loss of the property. It further provides that Walker is to receive all the proceeds of the farm after deducting the expenses and advances made by Stokes on account of the farm, or for any other indebtedness due Stokes by Walker. Other testimony was introduced, not material in the view the Court takes of the merits of this case. The Court below awarded a non-suit, which is the ground of error assigned. Much depends in this case upon the construction of the instrument entered into between Stokes and Walker. If it is a sale under the laws of Georgia, then the action of trover- may be properly maintained, as, in that event, both the title and legal possession of the property belonged to Walker. But, on the other hand, if it is a mortgage, then, inasmuch as a mortgage passes no title and gives to the mortgagee no right to the possession of the mortgaged property, a different result follows. Under the decision in 9 Georgia, 151, as well as under the rule for the construction of contracts laid down by the Code, we are satisfied this instrument constituted no more than a mortgage. It was a security for a loan of money to be made by advances towards the cultivation of a growing crop, and there are pro*265visions therein inconsistent with the ownership upon the part of Stokes. His covenant not to he liable for mismanagement or loss of the property would be unreasonable and incompatible with his rights of ownership, and taken in connection with the terms of compensation to Walker, that he was to have all the proceeds of the farm after the payment of the expenses and advances made by Stokes, and other debts due by him, fixes, beyond judicial controversy, the true intent and meaning of this instrument. And if it be a mortgage, as we bold it to be, then the action of trover would not lie for the recovery of this cotton, and the Court committed no error in awarding a non-suit under the facts of the case.
Judgment affirmed.