Whether the paper be a bill of sale or a mortgage, in the view we take of this case, is immaterial. What was sold or mortgaged, is the question. The contract shows what it is. It is “ five bales of white lint cotton, each bale weighing five hundred pounds of the first pickings of the cotton crop now planted and in growing condition,” etc. It is not the growing crop which was s.okl, but that part of it Which was matured and turned into five bales of cotton, of a certain weight. Before it was ginned and packed, so as to be taken possession of by the claimants, the plaintiffs in execution levied on the cotton in seed, gathered but not ginned and packed, and the judgment thus seizing the matured crop antedated the bill of sale.
The whole case on law and facts was submitted to Judge Brown, who held it subject. We do not see how he could have held otherwise. The moment this cotton was gathered and housed, it became liable to seizure by the sheriff under thefi.fa., and was so.seized, and the claim was interposed by the purchasers of five bales of cotton to be made out of it. They contracted for the five bales in May, 1884, while the crop was growing, but they bought no specific amount of the growing crop as a growing crop,—no particular field or number of acres or of pounds in gross to be made out of or on it; but they bought the bales of cotton. So that they bought and were to get part of a crop only when and after it was subject to levy and sale ; they had no right of possession till then ; but then a higher right had seized it; before they could take it into possession, a higher right to seizure fastened upon it, and the judgment which authorized the seizure was dated a year or so before
*13This case is wholly unlike ihe case of Scolley vs. Pollock, 65 Ca., 339. There the growing crop was sold in July and claimant took possession of part of it at least by plowing and working it after he bought it. This crop, thus bought and paid for and partly worked by claimant, was levied on when gathered, or part of it was, when it was held that the title was gone by the sale out of defendant in fi.fa., because at the time that the growing crop was sold, it could not be levied on.
We were asked to review that case, but it is unnecessary, as we think it differs widely from this. Some of the principles therein expressed, however, are doubted, and will hardly be extended beyond the facts therein, or simi lar facts to them.
Judgment affirmed.