
    WEST et al. v. UNITED STATES FIDELITY & GUARANTY CO.
    (No. 2878.)
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 12, 1927.
    1. Garnishment <&wkey;25 — Homestead <&wkey;74— Proceeds of crops raised on homestead held subject to garnishment, levied while crops were ungathered.
    ' Where rental contract gave landlord no interest in crops, but only a definite portion of proceeds after sale, helé, that writ of garnishment, served on tenant while crops Were un-gathered, was valid and rendered subsequent proceeds of crops subject to writ, and fact that crop was raised on homestead did not exempt proceeds from garnishment.
    2. Chattel mortgages <&wkey;47, 138(1) — Mortgage by landlord of portion of proceeds from sale of crops due as rental, in advance of planting of crop, held valid and prior to suhsequent garnishment of crops.
    Where rental contract gave landlord portion of proceeds of sale of crops, landlord could mortgage such interest in advance of planting of crop, and such mortgage was entitled -to priority, as against subsequent garnishment of crops.
    Appeal from District Court, Hall County; C. O. Small, Judge.
    Garnishment by the United States Fidelity & Guaranty Company against S. I. Martin, wherein S. T. West and W. H. Neeley intervened. Judgment for plaintiff, and in-terveners separately appeal.
    .Affirmed as to intervener West, and reversed and rendered for intervener Neeley.
    Elliott & Moss, of Memphis, for appellants.
    Sam J. Hamilton and John M. Deaver, both of Memphis, for appellee.
   RANDOLPH, J.

Appellee having obtained a judgment against S. T. West, in the district court of Hall county, for the sum of $1,460.25, and interest, thereafter had a writ of garnishment duly issued and served on S. I. Martin, a tenant of appellant West, on his farm, which farm had'been judicially ascertained to be the homestead of appellant West. The issuance and service of the writ of garnishment occurred prior to the maturity of the crops raised by said tenant on such homestead and while they were yet growing in the field. Prior to the service of the writ of garnishment, the defendant West, being indebted to one W. H. Neeley in the sum of $2,702.86,' executed a mortgage to said Neeley on all rents accumulated or to accumulate on the premises occupied by said Martin as West’s tenant, and such mortgage had been duly registered, giving the plaintiffs constructive notice of the same at the time such writ was served.

The tenant, Martin, had leased the land from West by a contract, which provided. that Martin was to gather the crop and-sell it and pay over to West one-fourth of the proceeds of all cotton raised on the land. Martin gathered the crop and sold it and thereafter filed his final answer in the garnishment proceedings, in which he alleged that he was indebted to West in the amount of $1,548.53, “which was rent deposited since the garnishment was served upon him,” and, further, that he was not indebted to West in any amount whatever at the time of service of the writ of garnishment, except on rent of crops then ungathered.

West intervened in the garnishment proceedings, pleading the homestead status of the land upon which the crop was raised, and further pleading that at the time of the service of the writ of garnishment said cotton was. still rq the field ungathered, and also pleading certain damages alleged to have been suffered by him. W. H. Neeley also intervened, setting up his mortgage.

On trial, all matters of fact, as well as of law, were submitted to the court, and that court rendered judgment in favor of the plaintiffs. West and Neeley, by separate appeals, have brought the ease to this court for review, but have submitted both appeals together.

The decision of the West appeal revolves around and is controlled by the question whether or not the service of the writ of garnishment, at a time when the crops were ungathered in the field, and when they were yet attached to the soil, voided the writ. In other words, the writ not only commanded the garnishee to answer “what, if anything, he is indebted to the said S. T. West, and was when this writ was served on him,” but required also that he make such answer under oath at the next term of court, and, such answer having been filed subsequent to the gathering and sale of the crops, is the validity of the impounding of the proceeds to be adjudged as of the time of the service or as of the time of the filing of the answer in the garnishment proceedings?

It will be noted that the landlord’s rental contract, gave the landlord no interest in the crops, as crops, but provided that the tenant should sell same and p'ay him a definite portion of the proceeds after such sale. We agree with appellee’s counsel that this provision renders the question of the status of the crop analogous to the condition existing where the crops have been severed from the soil; it having been held that such severed crop is personal property, and subject to levy by execution. Coates v. Caldwell, 71 Tex. 19, 8 S. W. 922, 10 Am. St. Rep. 725; Willis v. Moore, 59 Tex. 628-637, 46 Am. Rep. 284; Silberberg v. Trilling, 82 Tex. 523, 18 S. W. 591.

Where the growing crops are not sought to be subjected to tbe writ, and from tbe evidence it appears that tbe landlord is entitled only to a part of tbe cash proceeds, after tbe crop bas been severed from tbe soil and sold, sucb proceeds are subject to tbe writ of garnishment. Tbe fact that tbe proceeds came from a crop raised on a homestead does not exempt it from garnishment, and such crop is not protected thereby. Tbe exemption protects tbe homestead from tbe operation of collection writs and this exemption extends to crops standing un-gathered, and not severed from tbe soil, but, after sucb severance, tbe proceeds of sucb crop are not exempt from levy. Coates v. Caldwell, supra.

The protection afforded to growing crops is provided for the reason that, to permit a levy, it would of necessity require tbe use and occupation of tbe homestead by tbe executioning creditor, and this would, to such extent, subject tbe homestead to levy. In tbe case of Hinzie v. Moody, 13 Tex. Civ. App. 193, 35 S. W. 832 (writ denied), it was held that tbe proceeds of tbe rent of tbe business homestead were not exempt, and we can see no reason why this rule should not be applied to tbe rent proceeds from a rural homestead.

Tbe fact that, in tbe case at bar, tbe writ of garnishment was issued and served at a time when the crops were growing, and bad not been gathered, does not render this writ and service thereof void, or voidable. The writ commands tbe garnishee to answer, if be then is indebted to tbe plaintiff debtor, and what, if any debt, be owes to sucb party at tbe time of tbe filing of bis answer. If be did not owe anything at tbe time of the service of the writ, but did thereafter become indebted before filiñg bis answer, the fact that the writ was served upon him at a time when be was not indebted could not protect the garnishee from a failure to disclose a subsequent indebtedness, and sucb subsequent indebtedness would not be exempt.

Considering tbe appellant Neeley’s appeal, it appears, from tbe evidence, and tbe trial court so found, that tbe appellant West bad no interest in the crop, but was entitled only to a one-fourth interest in tbe proceeds thereof,- and that West had no sucb interest in it as would enable him to mortgage it to Neeley.

Under authority of many Texas decisions, including Williams v. King (Tex. Civ. App.) 206 S. W. 106, Brod v. Guess (Tex. Civ. App.) 211 S. W. 299, and Curlee v. Rogan (Tex. Civ. App.) 136 S. W. 1126, we thought be was correct in bis holding that no sucb interest in a specific portion of tbe crop was reserved by tbe landlord as would enable him to execute a valid mortgage to Neeley; but our Supreme Court bas approved an opinion by Judge Speer, of tbe Commission of Appeals, in tbe case of Bowyer v. Beardon, 291 S. W. 219, which without expressly overruling those decisions, does, by bis bolding, in principle, overrule them.

In tbe last-named ease, Judge Speer bolds that there is no conflict between tbe Williams-King and Brod-Guess Cases on tbe one band, and Sanger Bros. Hunsucker (Tex. Civ. App.) 212 S. W. 514, on tbe other, and says:

“While in Sanger Bros. v. Hunsucker [(Tex. Civ. App.) 212 S. W. 514] the relation of the parties appears to be that of crop sharing, in which the owner, of course, has a fixed interest in a specific part of the crops raised. In such a case, he is as much the owner of his share as the tenant is owner of his share. We know of no reason why either may not execute a chattel mortgage upon his definite interest in such specific property. It is now too late to question the rule in this state that one may éxecute a chattel mortgage upon definite property, although such property is not, at the time, in existence, but is in contemplation of both parties. So. Tex. Imp., etc., Co. v. Anahuac, etc., Co. (Tex. Com. App.) 280 S. W. 521. The rule has often been applied to unplanted crops, and there is no reason for any distinction between the respective rights of landlord and tenant in such respect. It necessarily follows, if the tenant may mortgage his unplant-ed crop, the landlord likewise may mortgage a portion of the same crop, which, under the terms of a rental’contract, is to become his absolutely.
“But the distinguishing of the cases discussed, on the facts, is of no importance to the present inquiry. As will be apparent from an examination of the authorities, the difficulty in those cases of chattel mortgage upon crops to be planted and the like has not been one of the legality of the subject-matter, but rather one of describing or identifying any property at all. The general rule is that, in the absence of statutory provision to the contrary, any personal property which is capable of being sold may be the subject of a mortgage. The word ‘chattel’ is of no special significance, when applied to a mortgage of chattels. ‘It is a very comprehensive term in our law, and includes every species of property which is not real estate or a free-hold’ — a definition borrowed from 2 Kent’s Commentary, 340; Gilcrist Transp. Co. v. Phœnix Ins. Co. (C. C. A.) 170 F. 279. * * *
“Now, under the facts certified, whether Thompson was to be paid his rentals in cotton or cash, or partly in cotton and partly in cash, the right to receive such payment in- any, event is property subject to sale and assignment, and likewise subject to chattel mortgage."

Under the authority of this latest decision of tbe Supreme Court, we bold that tbe rentals due West could be mortgaged by him in advance of tbe planting of tbe crop, regardless of tbe form in which tbe said rental finally became due, and that Neeley’s mortgage was a valid and subsisting mortgage upon tbe proceeds of tbe crop in tbe bands of tbe tenant, S. I. Martin, and that Neeley was entitled to have bis said mortgage foreclosed as against all parties, plaintiff and defendants in this cause.

For the reasons last stated, the judgment of the trial court is affirmed as to appellant West, and reversed and here rendered for the appellant W. H. Neeley. 
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