
    NOVEMBER TERM, 1844.
    The President, Directors and Company of the Planters Bank of the State of Mississippi v. John H. Walker.
    Amendments by the sheriff of his returns upon executions, are not regulated by any certain rules, but are addressed to the sound legal discretion of the Court. Such amendments may be made at a term after the return term.
    Miter, with reference to amendments upon process before judgment; such amendments cannot be made after the term to which the process was returnable.
    Where the sheriff returned an execution “ levied upon two hundred bales of cotton ”; and upon a trial 6f the right of property therein, it was proposed to permit the sheriff to amend his ret.urn and state that the levy was in part made upon the cotton in the seed, which when ginned and baled amounted to only one hundred and seventy-one bales ; held, that the Court below ought to have permitted the amendment; but that todo so was in the discretion of that Court, and that, that discretion, however, exercised, could not be controlled by this Court.
    An improper exercise of that discretion which is allowed to the Court below in ■granting or refusing amendments, is no ground for the reversal of the judgment in such case.
    A sheriff will not be permitted to give testimony in contradiction to his return.
    By virtue of the Act of 1840 (Sheet Acts, 79), prohibiting the sheriff “ from levying on or selling, by virtue of execution or other process, any crop of cotton, corn or other product, while the same is under cultivation, and before it is matured and gathered,” such crop while in that condition is not subject to the lien of a judgment upon which the execution, the levy of which was prohibited, might issue.
    Where a plantation with a growing crop thereon was sold, the right to the crop, which, until severed, was part of the freehold, passed with the land; and the crop, when severed and gathered, would not become subject to an execution against the vendor of the land.
    In error from the Circuit Court of Yazoo county.
    Several cases were submitted to the Court at the same time, depending on the same questions of law and fact. The facts in one case only are stated. They are as follow: —
    On the 25th day of May, 1839, John H. Walker obtained a judgment against Peter C. Goosey and William K. Stone, in the Yazoo Circuit Court, for the sum of twelve hundred and seventy-one dollars ten cents, besides costs. On the 11th day of March, 1841, a plurids fi. fa. issued on the judgment, which came to the hands of the sheriff of Yazoo county, and was by him, on the 12th day of March, 1841, levied on fifty bales of cotton, as the property of PeteiyC. Goosey, which was claimed by the Planters Bank ; bond and affidavit made and given according to law ; upon which an issue was made, to be tried in the Yazoo' Circuit Court. At the November term, 1841, of this Court, the issue was tried, when the jury rendered the following verdict, viz.: “ We, the jury, find for the plaintiff in the execution, and that the cotton levied on was the property of said Peter C. Goosey, and subject to levy and sale under said execution, and assess the value of the- cotton at $1800,” &c. Upon which the Court rendered this judgment. “ It is therefore considered by the Court, that the said John H. Walker recover of the said claimants the said fifty bales of cotton, if to be had ; if'not, the said sum of one thousand eight hundred dollars, the value thereof,” <fcc.
    On the trial before the jury, the claimant, the plaintiff in error, applied to the Court to permit the deputy sheriff, who made the levy on the cotton in dispute, to amend his return, so as to state the facts -of the case, which the claimant offered to prove by said amendment, and offered to prove by said deputy sheriff, that the said executions were not levied upon two hundred bales of cotton, bdt were levied upon a parcel of said 'cotton ; and that the amount so levied upon would not have made two hundred bales, but a much smaller amount, being not more than one hundred and seventy-one bales ; which application was overruled by the Court below, and the claimant-excepted.
    Upon the trial the Court were asked by cpunsel for claimant to instruct the jury, that a judgment is not a lien on a growing crop, and no execution can be levied on the same, until after the said crop is gathered ; which was refused by the Court 5 and the said Court instructed the jury, that a judgment was a lien, and an execution co.uld.be levied on a growing crop. To which instruction exception was also taken.
    The third bill of exception shows that on the trial, the plaintiff below, Walker, who is, defendant here, gave in evidence to the jury his execution, with ^others which were levied, with the judgments on which they were issued, and proved by Peter C. Goosey, that the cotton levied upon was raised upon the plantation, in the year 1840, upon which he, the witness, then resided, and had resided since 1835 ; that said cotton was raised under his, witness’s, care and attention, and with the hands, and upon the land mortgaged by him, witness, to Passmore Hoopes, to secure certain notes mentioned in said mortgage, which said notes belonged to the Planters Bank; that witness had cultivated the land mentioned in said mortgage with the hands therein named, and appropriated the crops raised upon the said land, and by the said hands, to his.own use, from the 5th day of June, 1835, the date of said mortgage, -uutill the 3d day of August, 1840, when the witness delivered the land, negroes, and growing crop of cotton, corn, and every description of property belonging to said land mentioned in said mortgage, to the agent of the Planters Bank ; and all he did upon the said plantation, after the said 3d day of August, 1840, was as overseer, by agreement with the said agent, for said bank, and that he considered he had no interest in said property so delivered up.
    James Belis proved that about the 3d March, 1841, cotton was worth about nine cents, and that bales averaged about four hundred pounds ; which was all the proof on the part of the plaintiff in the execution, the defendant in this Court. 5
    The claimant then offered in evidence and read to the jury, the deed of mortgage referred to in the testimony of the witness Goosey, to Passmore Hoopes, dated 3d day of June, 1835 ; then the deed from Passmore Hoopes to the claimants, dated the 14th day of August, 1840, reciting a sale on the 3d day of August, 1840, by virtue of, and to satisfy the debt in said mortgage mentioned, and conveying the said land and negroes, &c. to said Planters Bank, the claimants.
    Peter C. Goosey was then introduced upon the part of the claimant, and proved that advertisement was made, and the property sold in pursuance of the mortgage before set out; that thirty days’ nbtice was given in the Southern Sun, a newspaper published in the town of Jackson. Witness further stated, that the reason why all the negroes mentioned in the deed of mortgage were not sold on the day of sale was, that three of them had run away, some of them had died, and the remainder not able to travel to Benton, the place of sale.
    The Court then, upon application of plaintiff's attorney, charged the jury that if they believed, from the evidence, that after the mortgage or deed of trust in this case was executed, the mortgagor was permitted to remain in possession of the property, and raise crops and use them, that the rents and profits of the land raised during the possession of the mortgagor, and before he was dispossessed, belonged to him. "At the request of the defendants, the Court further charged the jury, that if they believed, from the testimony, that the mortgage was made before the rendition of the judgment upon which the execution in this case was founded, and the party for whose benefit the mortgage was made, entered the land and took possession of the same, by virtue of, and in pursuance of the mortgage, or by consent of the mortgagor, that then his title to the land and appurtenances became full and complete.
    That if the jury believe, from the evidence, that at the time of the sale made under the mortgage, Goosey delivered up the crop and everything upon the premises to the bank, then it became ,the property of the bank, and was not subject to any lien subsequent to said delivery. »
    The jury then found a verdict as before stated. The claimant then moved for a new trial, because,
    1st. The Court refused to allow the sheriff to a mend his return on the execution, or testify as to the facts of said levy.
    . 2d. Because the Court refused ,to charge the jury, that a judgment was not a lien on a growing crop, and charged that it was a lien.'
    3d. The jury found contrary to law and evidence ; and because of other reasons assigned on argument. Which motion1 was overruled, and judgment rendered against the plaintiffs in error. To which exception was taken, and the case is now here by writ of error. ~ ’
    
      Robert Hughes, for plaintiffs in error.
    1st. The judgment must be reversed, because the levy by virtue of the -execution was made on fifty bales of cotton, and there is no value assessed on each bale of cotton by the jury.
    This question is conclusively settled by this Court. See Pen-rice v. Cocks, 1 How. 227.
    2d. A new trial should have been granted; the verdict was clearly against law and evidence. The charge of the Court was in substance, that if the jury, believed, from the testimony, that a sale took place Tinder the deed of trust or mortgage, and under that sale the property and crops growing on it was delivered to the purchaser, the claimant, the right to the crops vested in the purchaser, and was subject to no other liens. Goosey proves that the sale and delivery took place. And the only question which can arise is, as to whether the proposition contained in the charge is law; and this will now be discussed. ■
    By reference to the mortgage, it will be seen that it was given by Goosey to Passmore Hoopes to secure the payment of notes payable in one, two, three, and four years after the first day of June, .1835, which will make the last notes due in June, 1839. No part of the money had been paid, and a forfeiture had taken place on the 1st June, 1836, 1837, 1838 and 1839, and the sale under the mortgage or deed of trust, and delivery of the property to the purchaser, was on the 3d day of August, 1840, and that delivery was voluntarily ma^de, by Goosey. But suppose that Goosey had refused to deliver the possession; would he have been entitled to the crop ? For if he would not, there can be no question that his creditors would not.
    What was the character sustained by Goosey, at the time the crop in contest was planted ? We admit that he was a tenant in a limited sense of that word. He held the land, but in the legal sense of .the term he was not a tenant; the relation of landlord and tenant between Goosey and the bank did not exist.
    Some of the law books have been in the habit of treating a mortgagor in possession after forfeiture, as a tenant ¿t will of the mortgagee. It is true that he is somewhat like a tenant at will, because the mortgagee may, when he will, turn him out of possession. It is, however, a mere -similitude, for he pays no rent; he is in possession, and holds possession merely under a supposed agreement that he will pay interest on the mortgage, and while he does so, that he may receive the rent; but this agreement may be terminated at any time by the mortgagee, who is therefore entitled to rent accrued and to accrue. See Moss v. Oallimore, Doug. 278, 283 ; Powell on Mortgages, Amer. from 6th English edition, 159, 157 ; Cholmondely v. Clinton, 2 Jac. & Walk. 181, 182, &c. ; Christopher v. Spar he. Ib. 234. .
    These cases and authorities prove most conclusively, that the mortgagor in possession after forfeiture, is neither sa tenant at will, sufferance for years, or otherwise, nor receiver, nor agent, or that the relation of trustee and cestui que trust can or does exist only sub modo. But that the relation is one sui generis, being that which the law has long well settled, that of mortgagor and mortgagee, as before stated; as circumstances may arise or vary, a similitude may exist, the relation may be like a tenant at will, or sufferance, agent, receiver, or trustee ; but this is all.
    In this character of mortgagor and mortgagee, there is nothing existing which in the least degree shows that the mortgagor is entitled to emblements; but, on the contrary, everything is the other way. For, says Lord Mansfield, in the case of Mossv. Gallimore, “ The mortgagor receives rent by a tacit agreement with the mortgagee ; but the mortgagee may put an end to this agreement when he pleases.” Again, in the case of Christopher v. Sparke, the Master of the Rolls says : “ The argument, from there being a tenancy at will, arises from a mere fiction ; for there is no actual tenancy, no demise, either express or implied. The mortgagor has not even the rights of a tenant at will; he may be turned out of possession without notice, and is not entitled- to the emblements.” These cases would seem to settle the question, for that which is in contest are emblements, which are defined to be “the profits of sown land.” We admit the clear law to be, that whenever a tenancy may be determined at the will of the lessor, or when the determination of the tenancy depends upon the happening of an event, which as to time is uncertain, and the same is determined without the agency of the tenant, then he is entitled to the emblements ; and the reason of this rule is obvious. It is because at the time of sowing his seed he is in possession rightfully, or entitled to the use and occupation, by agreement, for which he pays rent. See Stewart v. Doughty, 9 John. R. 113.
    This reasoning, however, does not apply to a case between mortgagor and mortgagee, because the mortgagee, by the forfeiture of the condition, has become the legal owner of the estate, and is the only one entitled to the rightful possession, and the possession of the mortgagor is the possession of the mortgagee. 1 Powell on Mortgage, 157.
    When, however, a tenancy at will or other tenancy,- is determined at the will of the tenant or lessee, or by an act of his, as by forfeiture of the condition upon which he holds, and he plants the land, and determines his will, or performs,an act which is a forfeiture of the condition, and thereby the tenancy is at an end,— in all such cases the tenant is not entitled to the emblements. So when the estate of the lessee is uncertain and defeasible by a right paramount,' then he that hath the right paramount ■ and enters, is entitled to the emblements. See 1 Thomas Coke, 640, marginal page.
    So that were it true that a mortgagor; in possession, after forfeiture of condition, stands in the relation of tenant, it is such a tenancy as that, by virtue of it, when the estate is determined, he is entitled to no emblements, but what he has sown may be reaped by another.
    Again, the object of a mortgage is security of the money, which is the principal object, and the mortgage is the incident before forfeiture ; after forfeiture the estate is vested in the mortgagee, whereas before the forfeiture he had only a chattel interest; now, upon forfeiture, he has the land, and a right to the possession. True, until after foreclosure by sale or otherwise, there is an outstanding equity of redemption, but the land, and everything on it, or produced by it, is a security for the money until the equity of redemption is foreclosed ; and a part of this security is the crop growing on the land. 1 Powell on Mortg. 155 - 157.
    How then can it be that the crop which was levied on in this case is subject to the lien of the judgment, liable to be sold by virtue of the execution ? A forfeiture of the condition of the mortgage had taken place in 1836, in 1837, in 1838, and 1839, and by virtue thereof at any time the mortgagee, or cestui que use, was entitled to take possession ; and in August, 1840, while the crop was growing, a legal sale was made of, the land- and everything which was on it, as security for the money due ; and by virtue of that sale, possession was d'elivered to the purchaser, who was the mortgagee, not only of the land, but of the crop also ; that being done only which could have been enforced. The jury, therefore, found contrary to law and testimony, and the verdict should have been set aside. >
    Battaile, for the defendant in error.,
    It is contended by the counsel for defendants in error, that there is no error in the record of the judgments of which the plaintiffs in error can complain, even if there was any error at all, which counsel for defendants in error utterly deny.
    The Circuit Judge certainly did not err in refusing to allow the deputy sheriff to change his return, and to give evidence contradicting its truth. A sheriff cannot deny the .truth of the facts stated in his own return. 3 How. 66. The return of the sheriff to process, is conclusive between the parties. 7 Comyns’s Dig. 287 ; Watson on Sheriffs, 72 ; 1 Salk. 265 ; 3 M. & S. 175 ; 15 East, 378, 382; 4 Burr. 2129. But in this case, the bond'given by the plaintiff in error to try the right of property, admits the correctness of the return, and the plaintiffs in error are estopped by their own deed from denying it.
    The Court was right in refusing to instruct the jury that a judgment was not a lien on a growing crop, &c. There was no evidence in the case which made such an instruction applicable, and the Court is not bound, neither has it any right .to .[decide mooted or abstract questions of law irrelevant to the case before the Court. 1 Cranch, 318 ; 9 Cow. 674 ; Walker, R. 379 ; 1 Bibb, 266.
    But the proposition was not law in any case. The act of .1840, Sheet Acts, p. 29, says, “ That it shall not be lawful for any sheriff or other officer, to levy on and sell, by virtue of an execution or other process, issuing from any Court in this State, any crop of cotton, corn or other product, while, the same is under cultivation, and before it matures and is gathered.” This law merely suspends the lien of the judgment which had been declared by the act of 1824, and does not take it away, or exempt crops from levy and sale under execution. The lien of the judgment attaches whilst the crop is growing, but cannot be executed until the crop is gathered. The object of the act of 1840, was only to prevent the sacrifice of the crop before it had matured, for the encouragement of agriculture, and that the laborer’s toil might not be in vain, but that he might, reap the fruits of his labor; not, however, exempt from the claims of his creditors. It was to benefit debtors, who were agriculturists ; not to injure or impair the rights of creditors, but for their benefit also, and to prevent a wanton waste of the profits of labor. It is only inth is view, that the acts of 1824 and 1840 can be construed and reconciled. And the act of 1840, by its very terms, shows that this, and nothing else, was its purpose.
    The instruction given by the Court below, on request of the plaintiffs in the execution, “ That if the jury believe from the evidence, that after the mortgage or deed of trust was executed, the mortgagor was permitted to remain in possession of the property, and raise crops and use them, that the rents and profits of the land, raised during the possession of the mortgagor, and before he was dispossessed, belonged to him was certainly the law, and directly opposite to the facts of the case. However the much vexed question, whether a mortgagor in possession is .entitled to profits, &c. may be decided, here is a case in which that doctrine cannot apply ; for the witness, Goosey, who was the mortgagor, expressly proved that he was permitted by the mortgagee to remain in possession of the land and slaves, from June 5th, 1835, the date of the mortgage, till August 3d, 1840, some one or two years after the dates of the judgments obtained by the defendants in error, and to appropriate the crops to his own use, &c. The crops, then, were recognized by the mortgagee as Goosey’s, and given up to him as his, without any claim being asserted by the mortgagee to them, and were his own property, and as such was a subject on which judgments against him might attach. Nor is there anything in the record showing that the plaintiffs in error asserted any right to the said crop'under the mortgagee, but only under the sale of the 3d August, 1840, and after the levy of the executions of the defendants in error.
    
      Counsel for the defendants in error confidently but respectfully contends, that the judgments of the Court below ought to be affirmed. That correctness of judgment below is a presumption of law, unless the record and evidence therein contained show error, is a rule with Appellate Courts too long settled to be urged now.
    
      Wilkinson 8¡° Miles, and George $. Yerger, on the same side.
    All the questions in this case grow out of the several bills of exception taken preceding the trial in the Court below, and the refusal of the Court to grant the new trial asked for.
    They shall be noticed in their order on the record.
    1st. The motion of the bank, for an order on the sheriff to amend his return, came too late. The levy had been made on a specified number of cotton bajes, and a claimant’s bond interposed by the bank, reciting the levy, and admitting its correctness for more than eight months' before the application to amend was made. Having admitted by their bond the correctness of the levy, they are now estopped to deny it. The motion to amend was made at the Nov. term, 1841. The execution had been returned at the May term previous ; it was therefore functus officio, and beyond the control of the sheriff. Besides, an amendment at that time would have made the record inconsistent with itself, creating, as it would have done, a discrepancy between the claimant’s bond and the sheriff’s return, thereby precluding any recovery upon the claimant’s bond.
    2d. The instruction embodied in the second bill of exceptions, was correctly refused. The act of 1824 makes a judgment a lien on all the property of the defendant. The acts subsequently passed do not repeal, but only modify it. The act of 1840, protecting growing crops from seizure and sale under execution, upon which counsel predicated the instruction, does not in terms, nor does it by implication, repeal the act of 1824. Its only object was, to prevent a sacrifice of property, consequent upon selling a growing crop. The legislature could not have intended a repeal of the act of 1824, or they would have employed language more clearly indicating their meaning. If, then, the act of 1824 was not repealed by the act of 1840, a judgment is still a subsisting lien upon a growing crop, notwithstanding it may not be sold by the sheriff under execution until severed from, the freehold.
    3d. The third bill of exceptions embodies all the evidence introduced, on the trial below, and the instructions given by the Court, and was taken on a new trial being refused.
    It is only necessary to inquire, under this part of the case, to whom ¡the crop of 1840 belonged. Goosey, who was introduced as a witness, proved that he executed the mortgage or deed in trust in 1835, and had been in possession of the premises from that time up to the 3d of August, 1840, appropriating the annual products to his own use. The facts, then, involve but one question of law, which is too well settled at this day to allow controversy.
    Goosey, the mortgagor, being in possession, was entitled to the emblements. 1 Rowell on Mortgages, 156 to 162, and note A. beginning at page 156 ; 9 Conn. Rep. 225.
    If he Was entitled to the emblements as against the mortgagor, then it clearly follows that those emblements were subjept to- be levied on to satisfy judgments against him. The Court was therefore correct in refusing a new trial.
    4th. The jury, from the evidence, were warranted in inferring fraud in the transaction. The notes mentioned in the deed of trust had not passed to any person. They were made afterwards to raise money on them. When the Planters Bank got them, whether before or after the judgments were obtained in these cases, is not shown. The judgments were obtained in 1838 — 9. See Bunkers-hoff v. Marvin, 5 John. Ch. Rep. 326 ; James v. Johnston, 6 ib. 429.
    But in addition to the notes specifically mentioned, the deed of trust contains a sweeping clause, to cover all future indorsements and liabilities, without specifying or setting them forth, so that they could, upon examination of the record, be ascertained. This, coupled with the fact of Goosey being left to enjoy the whole profits and use of all the property, would well warrant the jury in inferring fraud. For although a mortgage may be made to secure future advances (4 Kent, 175, 176, and cases cited), yet it is giving the mortgagor a dangerous power, which, coupled with other facts, would justify an inference of fraud by a jury. This ground was before the jury, and there can be no exception to the charges of the Court.
    5th. Another ground assumed is, that the verdict does not assess the value of each bale of cotton. I do not think this is necessary upon an issue of this kind. The Act of Assembly, which governs his, makes the rule a different one from an ordinary action of de-tinue. See H. & Hutch. 654, sec. 78, 79.
    But if the rule as to detinue applied, it would be no cause for setting aside the verdict. A writ of inquiry would be awarded the same as if no value had been found. H. & Hutch. 591; Key v. Allen, 3 Murph. 523; Buckner v. Haggin, 3 Monroe, 60; Talbot v. Talbot, 2 J. J. Marshall, 7.
   Mr. Justice Clayton

delivered the opinion of the Court.

This was a proceeding in the Circuit Court of Yazoo, to try the right to a quantity of cotton levied upon by execution in favor of the defendant in error, and claimed by the plaintiff in error.

On the trial, the plaintiff in error moved the Court to permit the sheriff to amend his return, so as to show that the quantity of cotton was not two hundred bales, as stated in the return, but that the levy was in fact made upon the cotton in the seed, which when ginned yielded but one hundred and seventy-one bales. The Court refused permission for the amendment to be made, to which an exception was taken.

Amendments of this description are not regulated by any certain rules, but are addressed to the sound legal discretion of the Court. They are allowed with great liberality, and it has been said will be permitted whenever the ends of justice require it. Mara v. Quin, 6 Term Rep. 8; 3 Cow. 44; 17 Pickering, 108. They may be made at a term after the return term. 11 Mass. 413; 1 S. & M. 560.

There are exceptions to the rule, if it can be said that there is any general rule on the subject. Some of these will be found collected in a note in 3 Cow. 44. Our own Court has decided that the sheriff will not be permitted to amend his return after the term to which the process was returnable, and after judgment. 5 How. 173. The reason that an amendment is not proper after a judgment has been rendered upon the return, is, that it would cause a reversal, and seriously affect rights acquired under it. The party injured must seek redress in such case by his action for a false return.

The application in this instance, under the liberal feeling which is manifested in our legislation in regard to amendments, we should think, ought to have been granted. But all such applications are addressed to the sound discretion of the Court, and however that discretion may be exercised, it cannot be controlled by a superior tribunal. 5 How. 538 ; 1 S. & M. 540t We cannot, therefore, interfere with the judgment upon this ground.

The refusal to permit the sheriff to give testimony in contradiction to his return, was entirely correct. Van Campen v. Snyder, 3 How. 66.

In the progress of the cause, the Court instructed the jury that a judgment was a lien upon a growing crop, to which charge an exception was filed by the counsel of the bank. This instruction, in our opinion, was incorrect. By the act of 1824, a judgment is declared to be a lien on all the property of the defendant. H. & H. 621. But by the act of 1840, it is declared, u that it shall not^ be lawful for any sheriff or other officer to levy on and sell by virtue of an execution or other process issuing from any Court in this State, any crop of cotton, corn or other product, while the same is under'cultivation, and before it is matured and gathered.” Acts of 1840, page 29. Before that statute, corn or other product of the soil raised annually by labor and cultivation, might be seized under execution and sold. 7 Mass. 34; 9 Johns. 108; Wright v. Dewees, 28 En. Com. Law Rep. 172.

The change effected by this law in preventing a seizure of growing crops under execution, operates an exception in their favor, out of the act of 1824. During the time that they are exempted from execution, they are likewise exempted from the operation of the judgment lien. It is an exception created by the law, and is in effect a provision, that, until gathered, a crop is not subject to the lien of either a judgment or execution.

The crop which was growing on the mortgaged premises at the time of the sale, constituted before severance a part of the freehold, and passed to the purchaser, the Planters Bank, as part of the land. 4 Kent, 467. After it was gathered, it could not become subject to the.execution against the mortgagor, because some months previously it had passed to the purchaser, by the sale of the land on which it was growing.

For the error in this charge, the judgment will be reversed, and á new trial granted-  