
    STEWART v. KRAMER et al.
    
    May 23, 1896. By two Justices. Argued at the last term.
    Rule against constable. Before Judge Harris. Carroll superior court. April term, 1895.
    A fund of $100.36 was raised by tbe levy of two justice’s court fi. fas. in favor of E. G-. Kramer. The fi. fas. were against J. H. Marcbman, dated April Y, 1893, recorded April 15, 1893, and based on judgments dated April 1, 1893. Stewart claimed under mortgage fi. fa. in favor >of himself against Marcbman for $209.50, “to be levied of four fifths of the entire cotton crop of Marehman for 1894, consisting of 40 acres more or less on lot 66 in 11th district” of Carroll county; said fi. fa. based on mortgage dated May 25, 1894, recorded tbe same day, describing said property. Tbe fund was realized from the sale of Marchman’s cotton crop for 1894. Upon tbe trial Stewart testified, that tbe consideration of tbe mortgage debt was supplies and necessaries be as a merchant furnished Marcbman for tbe year 1894, to enable him to make a crop; that Marehman was insolvent; and that he furnished Marcbman tbe goods on tbe faith of tbe crop be would make said year. Marcbman testified, that tbe money in tbe bands of tbe constable was realized from sale of crop of cotton mortgaged by bim to Stewart; that tbe consideration of tbe mortgage debt was supplies Stewart bad furnished bim in 1S91 to make tbe cotton mortgaged to bim; tbat it was only tbrougb tbe supplies so furnished that be was enabled to make tbe crop; and tbat tbe crop was raised on land tbat be occupied as bis own and owned before tbe rendition of tbe Kramer judgments, tbe title being in a loan company to secure borrowed money. Tbe court awarded tbe money to tbe Kramer fi. †-as., and adjudged tbat Stewart pay tbe costs, to which ruling Stewart excepted.
   Simmons, C. J.

Where a growing crop was mortgaged to secure advances wi'th which to make the same, and after its maturity was sold under a common law execution against the mortgagor, this execution was entitled to the proceeds of the sale as against an execution issued upon'a foreclosure of the mortgage, it appearing that the common law execution had been entered upon the general execution docket before the mortgage was given, and the mortgagee not being a person entitled to a statutory lien upon the crop for such advances. Judgment affirmed.

Capers Hodnett and Cohh & Brother, for plaintiff in error. Sidney HoWerness, contra.  