The clarion. [volume] (Jackson, Miss.) 1883-1888, 1886-12-29

What is the effect of the repeal "a
Sec. 1859 of the Code of 1880? il a ones
ton of great interest and Importance,
and 1t Is being discussed in all quarters
with more or less ability.
The Lexington Adrertiser contains the
opinion of the Hon. J. E. Gwin who
thus states and answers the question:
suppose the object Of the inquiry is to
know to what extent valid deed of trust
on crops to be grown may now be given.
and in answer to this think any one who
owns an estate in fee, or a life estate. or an
estate for one or more years, in land. can
mortgage the crops to be grown on such
lands for one or more years, not to exceed
the term OF his lease, or the term his estate
continues.
Mr.. Gwin offers in support of his
opinion the case of Ecerman d, Co. q.
Robb, 81 Miss, 657.
The Kosciusko Star contains auite an
elaborate opinion by the Hon. j. F.
McCool in which he, too, arrives at the
conclusion that notwithstanding the re-
peal of Sec. 1889, valid mortgages and
deeds OF trust upon growing crops or
crops to be grown may still be executed.
Mr.. McCool's opinion, which we publish,
is, we believe, in strict accord with the
decision in Egernaan d: Co. Robb, relied
on by Mr.. Gwin.
With due Difference to the distin-
guished gentlemen, as well as to Others
who have discussed the question, we
will make few suggestions that seem
to us to lead to the only point of diff
Guilty involved in it.
1t is conceded, to start with, that
owners of estates in fee or life estates or
estates for one or more years, indepen-
dent of Sec. 1859, could execute valid
mortgages and deeds of trust upon
growing crops and crops to be grown,
and that all persons owning growing
crops could cucumber them. So that
it would seem that the only substantial
privilege conferred by Sec. 1859 was the
right to persons who did not own an
estate in land to execute mortgages and
deeds of trust upon X crops to
be grown within fifteen months"
Thus it follows that Sec. 1859, as it
might affect owners of estates in land,
was mere statutory declaration that
that should be lawful which was lawful
before the statute was enacted, and as
1T might affect persons who did not own
an estate in land, it conferred a priyi-
lege not possessed by them before the
enactment of the statute.
The general rule is that the repeal of
a statute in derogation of the common
law, restores the common law. But is
that the rule in reference to the repeal
of statute which is declaratory of the
common law? May it not be said tLat
the Legislature having determined to
make the execution of deeds of trust
and mortgages on crops growing or to
be grown purely statutory matter, the
repeal of the statute has the effect of
making it unlawful to cucumber such
crops2
The effect of the repeal of statute
making that lawful which before the
enactment of the statute was unlawful,
is seen in the instance under considera-
ton. Before the enactment of Sec. 1859
only persons owning an interest in land
could cucumber crops to be grown; after
the enactment of that section all persons
owners of an interest in land or |
not could cucumber "crops to be grown |
within fifteen months" from the making
Of mortgage or deed of trust since its
repeal all agree that unless person has
an interest in land he cannot cucumber
a growing crop.
1t may be that the words at shall be
lawful for persons to make and execute
mortgages and deeds of trust upon
crops to be grown within fifteen
&C., found in Sec. 1859 were
merely intended as limitation upon
'he power of owners of estates in land.
Il so there is no doubt that the repeal
If the section had the effect of restoring
he right to cucumber crops to be grown
without limit as to time. But the Sec /,
ion has usually been construed as con-
erring privilege.