§ 19. Query as to necessity of written reservation of crop. § 20. § 21. Value of rule that reservation of crop must be in writing. § 22. Rights of tenant as to crops on mortgaged lands. § 23. § 24. What protection tenant can have as to his crop against mortgagee. § 25. Distinction between fructus naturales and fructus industriales. § 26. Exemption of growing crops from seizure. § 27. Construction of statutes exempting growing crops. § 28. Waiver of exemption of growing crops from seizure. Notice of chattel mortgage on crops. § 33. § 34. Relation of homestead exemption to growing crops. § 35. Ownership of crop dependent upon title to land. § 15. Growing crops the subject of contracts.-Growing crops, although having no immediate value, and depending on contingencies, have yet such an existence as to be, legally, the subject of sales, mortgages, and other contracts, which pass interests to vest in possession, either immediately or at a future time.1 But with these confessed characteristics of property, the condition of things is such that the ownership and control of the crop is, to a greater or less extent, affected by the title to the land on which it is growing. Where land was sold by a deed conveying the fee-simple absolute, without any reservation or mention made of the crops 1 Adams v. Tanner, 5 Ala. 740; Westbrook v. Eager, 1 Harr. 81; Nathan v. The State, 1 Carter (Ind.) 113. growing upon it, possession being delivered to the vendee, it was held that the crop remained the property of the vendor, because it was deemed to be personal estate.1 And so where the owner of the land leased the same, reserving for rent a certain proportion of the crops which should be raised thereon, and, while the crops were growing on the land, sold the premises to a third person, by an absolute deed of conveyance, without reservation of the growing crop thereon, it was held that the deed passed to the grantee the right to the rent and that the tenant must attorn to the grantee, but that the grantee could not maintain trespass against the grantor for entering upon the land and carrying away the crop.2 In another leading case, the plaintiff made to S advances upon certain personal property and a growing crop, taking as security a bill of sale thereof; S became bankrupt, but his assignee in bankruptcy waived his claim to the growing crop: defendant, a judgment-creditor of S, delivered to the sheriff a fi. fa. on his judgment, and thereupon the sheriff sold the crop, and the creditor became the purchaser, took and carried away the crop, and plaintiff sued for its value. It was held that, as against the defendant, the execution-creditor and purchaser, the plaintiff was entitled to the proceeds of the crop.3 In Bricker v. Huges, the question was fairly presented as 1Smith v. Johnston, 1 Penn. St. 471; Mauldin v. Armistead, 14 Ala. 702, in which the principle is clearly recognized that, although a mere confidence or expectation entertained by a factor that a bill (drawn by the grower of a crop and accepted by the factor) will be paid out of a particular crop of cotton, will not take from the drawer the right to make an adverse disposition of the crop. The grower of the crop may, without the formalities attending a conveyance of real property, or without any conveyance of an estate in the land, convey his growing crop in trust for the payment of a debt. 2 Gibbons v. Dillingham, 5 Eng. 9. In the same opinion, however, the law is declared to be, that a conveyance of the land, without reservation, is a conveyance of the growing crop thereon, and the discrepancy between the propositions, that such a sale of the land does and does not carry the crop, begins to appear. 3 Congreve v. Evetts, 26 Eng. Law and Eq. 493. 44 Ind. 146. To this point see also the opinion in Frank v. Harrington, 31 Barb. 415, in which case hops growing and maturing upon the vines were held to be personal property which may be sold by parol, although, in opposition, the point was distinctly made that they were of the nature of realty, because, the roots and substance being of the earth, the product should be considered as an incident or to whether growing crops were to be regarded as personal property, subject only to the ordinary form of sale as such; and the ruling was that they were personal property even before maturity, as such can be sold, and the sale does not necessarily involve an interest in realty requiring a written agreement. § 16. By a sale of land, the crop growing on it passes to the vendee as a general rule, although growing crops, being regarded only as personal property, subject to the rules of transfer, incumbrance, and ownership of such property, it is not clear why a conveyance of the land should carry them any more than it does the live stock, which depends for its existence and has been grown upon the land. The weight of authority, however, is against the conclusion which appears to be deducible from the reasoning last suggested, and the true rule seems to be that a conveyance of the land carries with it the growing crops, vines, trees, grass, and whatever else is attached to the soil,1 unless there is some express exception, reservation, or stipulation to the contrary in the conveyance.2 Where land had been sold on an execution, it was held that a crop of corn growing thereon, not then matured, passed to the purchaser of the land.3 And in another instance, similar in appurtenant to the land. The reason why the hops, before severance from the vines, should be deemed personal property, is by the Court said to be that the value of the crop depends on the labor, manure, and poles bestowed by the grower; but, on the other hand, in Ralston v. Ralston, 3 Iowa, 533, plaintiff's husband died Oct. 19th, 1851, siezed in fee of certain lands. A piece of the land was, on the 12th day of March, 1852, set off and confirmed to the widow as dower in fee: on the land so set off to her was a crop of wheat, sown in the husband's lifetime, but which had not been harvested when the dower was set off. The question was, "Is the widow or the executor entitled to the wheat?" Held in favor of the widow, in analogy to the principle that if A sells a farm to B on which there are growing emblements, and does not make a special reservation of such emblements, they pass with the title to B. 14 Kent's Com. marginal page, 468. 2 Terhune v. Elberson, 2 Penn. 726; 1 Leigh, 305. Per Carr, Judge, in Foot v. Colvin, 3 Johns. 222. Wilkins v. Vashbinder, 7 Watts, 738, overruling Smith v. Johnson, Ante, Sec. 15. 3 Pitts v. Hendricks, 6 Geo. 452. In another case, the land of a judgmentdebtor was sold by the sheriff, and a deed made to the purchaser while the grain, also belonging to the debtor, was growing on the land. After the execution, acknowledgment, and delivery of the deed by the sheriff, another execution-creditor of the same debtor levied on the grain and sold it, and the purchaser of the grain at this second sale brought suit against the tenant of the purchaser at the sale of the land, for cutting and removing the grain. It was held that the grow effect, where a landlord leased land to a tenant to put in a crop, the land being subject to a judgment against the landlord, the tenant put in the crop, but before he could harvest it the land was sold upon the judgment, and the purchaser was held to be the owner of this crop, and not the tenant.1 § 17. Reservation of growing crops, when a sale of the land is made, is both common and lawful; any reservation in, or exception from, the operation of a conveyance of land, will control the conveyance to the extent designated.2 By the general terms of a conveyance of the fee in lands, all which is attached to the soil is presumed to pass with the fee; but this is only a presumption, and may be met by proof of exception from the conveyance; an exception is always a part of the thing granted, or out of the general words and description in the grant, and so long as the reservation is not equal to the whole of the thing granted, it is valid, and cannot be deemed so repugnant to the deed as to make it void. Manifestly, however, if the reservation is as large as the grant itself, it must yield to the deed, and be treated as not having been made; and so if the thing excepted is specifically granted in the conveyance, an exception afterward appearing therein, of the same thing, would be of no legal effect; but where a deed is general in its terms any reservation of a specified portion of it is good, and the growing crops, upon the theory that it is part of the estate which would pass by the conveyance, may be regarded, therefore, as a portion of the property which may be reserved by the grantor. Where the exception is valid, the title to the thing excepted remains in the grantor, with the like force and effect as if no grant had been made. § 18. Reservation should be in writing, when.-Reservation of a crop, growing at the time the land is sold, should be in writing, as the presumption appears to be that the sale of the land carries the crop, and this presumption ought to be mct ing crop passed by the sheriff's sale of the land, and that the purchaser of the grain at the second sale got no title, and could not maintain the action. (Bear v. Bitzer, 16 Penn. St. [4 Harris] 175.) 1 Sallade v. James, 6 Barr. 144. 2 Kent's Com. marginal page, 468; Crews v. Pendleton, 1 Leigh, (Virg.) 297. by evidence of as high a character as that which gives rise to it. Such, if not the settled law, is the safer rule, and appears to be correct, reasoning by analogy, as well as by the earlier rulings of the Courts.1 The written instrument must be considered as containing the true agreement between the parties, and as furnishing better evidence of their intentions than any which can be supplied by parol. A written contract cannot be contradicted by parol, and all that which passes between parties previous to the execution and delivery of the written agreement is merged in the writing. § 19. Must reservation of crops be in writing? Query. -The rule that reservations of growing crops must be in writing has been departed from, and inasmuch as to sell a growing crop, mortgage and otherwise deal with it apart from the land, as personal property rather than real estate, is a right clearly recognized, and there have occurred circumstances under which the strict letter of this rule has been departed from, in important cases decided by able judges, the rule itself must not be received without considering these cases, or regarded as absolute. In Pennsylvania, 1852, Judge Black,2 in a case involving the 1 Gibbons v. Dillingham, 5 Eng. 9. This case was decided in Arkansas in 1844. Dillingham owned the land, and sold it to Gibbons by a deed, absolute on its face, conveying the fee-simple. A crop of corn was growing on the place when it was thus sold, and, after the delivery of the deed, was delivered. Dillingham commenced to harvest the corn and convert it to his own use, whereupon G objected, pulled out his deed, showed it to D, and declared that by virtue of said conveyance he claimed to be the owner of the crop; and ordered the vendor, D, to desist from removing it, but D persisted, harvested and carried away the crop, and G sued him for its value. To this suit the defendant pleaded: first, not guilty; and second, that the said supposed trespass was committed by leave and license of plaintiff. On the trial, Gibbons read the deed, proved the taking and carrying away of the crop, which was growing on the land when it was conveyed to him, its value, and rested. Defendant relied upon a parol agreement by which, at the time of the sale to G, he reserved this crop of corn; to the introduction of the evidence of this parol reservation, plaintiff objected; being overruled, excepted; and the decision of the cause, on appeal, turned on the point under consideration, which was clearly made and fully considered. The Court held that a reservation of the crop could not be proved by parol; that the Court below clearly erred in receiving any evidence tending to show a special reservation by Dillingham of his interest in the crop, as he did not think proper to insert it in his deed. Per Chief Justice Johnson, page 14. 2 Sachner v. Rex, 20 Penn. St. (8 Harris) 467. |