Cooper v. Turnage

52 Miss. 431

• Court: Mississippi Supreme Court
• Decided: April 15, 1876
• Status: Published

Opinion

Chalmers, J.,

delivered the opinion of the court.

The sole question presented is as to the precedence of lien on an. ungrown crop, as between a senior judgment and a. junior trust deed, executed by virtue of the statute authorizing the mortgaging of crops fifteen months in advance of their growth.

In the case at bar the judgment (from a magistrate’s court) was enrolled 12th March, 1875. The trust deed was executed on the same day, but not recorded until 17th of April. The crop was not in esse at the last-mentioñed date. The question presented is important and of first impression, but not believed to be difficult.

Judgment liens take effect as to after-acquired property, not from the date of rendition or enrollment, but from the date of the acquisition by the debtor of the property. Cayce v. Stovall, 50 Miss., 402.

By the 4th section of act of April Í7, 1873 (Acts of 1873, p. 80), it is made lawful for any person to mortgage a crop to be grown within fifteen months, and the effect of such incum-brance is declared to be to bind the interest of the mortgagor “ at the time of granting the same, or such interest as he may thereafter acquire.”

This evidently means that the lien upon the non-existing crop shall by fiction of law take effect eo instcmti with the execution of the mortgage, so that when the crop, -within the fifteen months, comes into existence the lien shall relate back to the date of its creation.

The judgment lien, on the contrary., does not relate back, but takes effect only from the time when the crop has an actual existence.

The mortgage lien, therefore, is older in time and prior in right.

Let the judgment be affirmed.

Mr. Justice Casipbell, having been of counsel, took no part in this decision. . ■