but may sell the crop as it stands, before it is matured or severed from the ground.1 § 25. Fructus naturales and fructus industriales.— Growing grass, trees, and other spontaneous growths are not regarded as chattels, or liable to seizure: they are sharply distinguished from growing crops. The latter are said to be chattels; they go, on the death of the owner, to the executor, and during the lifetime of the owner, may be taken in execution as chattels. In a New York case, where hops growing on the vines are declared to be personal property, it is admitted that they approach very near to that class of productions which can only be treated as realty, that is to say, the fruit from trees, shrubs,2 etc. With regard to fructus naturales, the established rule appears to be that not only grass, trees, and the other spontaneous yield of the soil are to be considered to be a part of the realty, but also the crop from such trees or other fruit-bearing plants ; they are parcel of the realty, must be sold as such, and the levy of an execution is void when, and so far as, made upon trees and annual productions of the earth, as clover, timothy, spontaneous grasses, apples, pears, and peaches, while ungathered, or yet growing; these are all regarded as incident to the land. Growing trees are the subjects of grant and conveyance by deed, as something of which we predicate freehold and inheritance, remain in life, and the execution thereof may be completed at any time within thirty days after such grain, grass, or other unharvested crop is ripe, or fit to be harvested." 1 Craddock v. Riddlesberger, 2 Dana, 205. "The authorities leave no pretext for doubting that growing corn is a chattel, and may be sold as such by the owner, or taken by an officer in virtue of a process of fieri facias.” The only doubt which has been intimated is as to the proper time of selling under an execution. "But though some have expressed the opinion that the sale should be postponed until after the crop shall have become mature and been severed from the ground, it seems that, prior to an act of the last legislature, (of Kentucky) the law conceded the right to sell the corn in the condition in which it was when the execution was levied on it. "The right to levy implies the right to sell as soon as legal notice can be given. Was it the duty of the officer to keep possession of growing corn for months after his levy, and in the meantime to cultivate and gather it, or be responsible for its loss or deterioration?" 2 Frank v. Harrington, 31 Barb. 415; Evans v. Roberts, 5 Barnwell & Creswell, 829. even though no right in the soil on which they are standing, passes, thereby, beyond that of having them stand thereon and derive nutriment therefrom till they are severed.1 In Bank v. Cary,2 the facts presented the question whether grass growing on land could be levied on, as a chattel, under an execution against the owner of the land, when it was turned out by defendant to be so taken, or when such levy is made by and with the consent of the defendant, the owner of the land; and it was held that properly it could not. The distinction is clearly marked between growing crops which owe their existence to the labor, care, and fertilization bestowed on them by the producer, and growing trees, fruit, grass, and the other natural products of the earth which grow spontaneously and without cultivation. Just how far trees and fruit-bearing plants, which are purely the result of skill and labor, manure and care, come under the rule that they are of the realty, is not well established. All the older standard authorities declare them to be so, but the reason of the nice distinction does not appear, and in the statute law of at least one of the States the converse of the proposition is recognized, so far as nursery trees are concerned ; & but here occurs a peculiar reason for distinguishing such from other trees, in that, like crops, they owe their value to the labor and skill, etc., of the nurseryman.4 1 Gwinne on Sheriffs, p. 220; Crocker on Sheriffs, p. 207; Toll. Law of Exrs. 192; 3 Bac. Abr. 64. 21 Barb. 542; 2 Black. Com. 122-3. 3 Civil Code of California, p. 504, Sec. 2958: it is declared that all growing crops, nursery trees, and other anticipated products, are personal property. 4 A. L. J. Jan. 29th, 1876, p. 70. "A parol agreement for the sale of growing trees, the trees to be severed and taken from the land by the vendee, will amount to a license for the vendee to enter upon the vendor's land for the purpose of making such severance; and if the license be not revoked before the trees are severed, the title to the trees will vest in the vendee, and the license, after such severance, will become coupled with an interest, and irrevocable; and the vendee will have a right to enter and remove the trees thus severed; but if, before the trees are severed, the vendor should revoke such license, no title will pass to the vendee, and no rights will vest by virtue of such parol agreement." (Owens v. Lewis, 66 Ind. 488.) "When, in a deed of growing trees to be removed by the grantee from the grantor's land, the terms of the grant, taken in their literal and usual sense, signify an absolute conveyance of the title of the trees, the grant is not made a conditional one by stipulation (express or implied) as to the time of removal." (Hoyt v. Stratton Mills, 54 N. H. 109.) § 26. Exemption of growing crops from seizure.-Growing crops are exempt from seizure, under distress or attachment, in Maine1 and Vermont.2 In Virginia, certain crops are, and others are not, exempt, 3 and the law in West Virginia is similar in effect. 4 In Wisconsin, certain animals are free from seizure, and the statute also exempts the necessary food to feed them for one year, whether the same is growing, or harvested and on hand, or both, as the debtor may choose, and the same provision for the support of the animals of the farm for the period of six months, occurs in the laws of Michigan." By the statutes of Colorado, there is an exemption from seizure of the provisions for the support of the debtor and his family for the period of six months, "either growing, or provided, or both."6 Kentucky has a like exemption of provisions for the debtor's support, and that of his family, for the period of twelve months, including growing crops. § 27. The construction of statutes of exemption has caused much discussion in the Courts. On the one hand, it has been reasoned that human progress toward a high standard of civilization and humanity has gradually discarded from the law the system of personal indignities to which the unfortunate debtor was subjected, and that the community is interested in "And if no time is expressly fixed, the construction generally is that the grantee has a reasonable time for removal." (Ibid, 109.) "If the grantee, after the expiration of such reasonable time, enters and removes the trees which were absolutely conveyed to him by the deed, he is liable, in trespass, for the entry, but not for the value of the trees." (Ib. 109; Plumer v. Prescott, 43 N. H. 277; Dame v. Dame, 38 N. H. 429.) "An unconditional conveyance of growing trees, without the land, instantly severs them from the land, in contemplation of law, and transforms them into personal property." (Kingsley v. Holbrook, 45 N. H. 313.) 1 By the Revised Statutes of Maine, 1871, p. 627, all growing crops are exempt from seizure until severed from the land. 2 Revised Statutes of Vermont, 1862, p. 363, Sec. 13. 8 By the Code of Virginia, p. 286, Sec. 32, it is provided that no growing crop, of any kind, shall be liable to distress or levy, except Indian corn, which may be so taken at any time after October 15th of any year. 4 Code of West Virginia of 1868, p. 254, Sec. 18, is in substance the same as that of Virginia. 5 Laws of Michigan, 1871, p. 1742 et seq. • Revised Stats. Colorado, p. 380, Sec. 33. provision being made to guard against the causing of pauperism by taking from the family of the debtor all means of support. That from true humanitarian premises it must be deduced that these provisions for exemption from seizure of such implements of labor, and for support, in and pending the debtor's attempt to recuperate his financial strength, should be liberally construed, as far as consistent with the rights of others, in his favor; and that even the creditor should be interested in the laws being so administered as to encourage the debtor to make efforts to regain his lost solvency.1 But, on the other hand, it is said that the owner of property is only conditionally so; that, if he is in debt, the property is not his own, because its very possession may well be the inducement which has led to his being trusted, and—to the extent of his indebtedness-he holds it, morally, in trust for his creditors; that statutes of exemption are innovations of the law for the sole benefit of the debtor; that he alone knows his true status financially, and has in that an advantage; and between him and the creditor, that the laws of exemption should be rigidly construed against the debtor, both in justice and from the public interest that capital should freely circulate, and credits be well sustained, by the law. 2 From the decisions, and the general practice in the Courts, it is, however, now to be deduced, that the leaning, if there can be any in construction, is in favor of the debtor, and the constantly increasing leniency manifested by the statute law of the several States in this behalf, keeps even pace with the judicial humanity manifested by the Courts. § 28. Exemption is a personal right, which the debtor may waive or claim, at his election. Although it has been held that the debtor need not designate what articles he claims to be exempt that it is for the officer 1 Gilman v. Williams, 7 Wis. 329; Connaughton v. Sands, 32 Wis. 387; Allison v. Brookshire, 38 Tex. 199. "Statutes exempting property from attachment are remedial, and should be construed liberally in favor of the debtor." Webster v. Cone, 45 Vt. 40. To the same effect, Kuntz v. Kinney, 33 Wis. 510. 2 Temple v. Scott, 3 Minn. 419. 3 Bowman v. Siniley, 31 Penn. St. p. 225. FARM-3. to know the law, and to obey it at his peril1—prudence dictates that the election should be made and the officer notified of it; such is the custom, and by the better array of authorities declared to be the law, that the claim of exemption is a personal privilege of the person against whom the writ runs, and that, in the absence of any such claim, the sheriff should levy.2 § 29. Chattel mortgages upon growing crops are in use in most, if not all, of the States, are provided for by statute, and due provision is made for the record of them. There is, however, a point of time when a chattel mortgage, or any other disposition of a crop, can be made only at some risk. That is, when the seed has been sown or planted, but no growth above the ground has appeared. In The Bank of Lansingburgh v. Crary,3 Paige, J., said: “I strongly incline to the opinion that a chattel mortgage can only operate on property in actual existence at the time of its execution; that it cannot be given on the future products of real estate, and that if given one day or one week before the product of the land comes into existence, it is as inoperative as if the chattel mortgage had been given on a crop of grass or grain one, two, or three years previous to its production." The law as to mortgages is that whatever property, personal or real, is capable of an absolute sale, may be the subject of mortgage, but that which existed only in the hopes of the planter, without any visible existence at all, is not within any of the definitions of property.5 1 Gilman v. Williams, 7 Wis. 329. 31 Barbour, 551. 2 State v. Melogue, 9 Ind. 196. 5 Condeman v. Smith, 41 Barb. 404. A chattel mortgage was given “of a wagon, sleigh, harness, and also all the grain growing on the lands rented, all the corn and potatoes now planted thereon, all the hay growing on the ground on said premises, all the fruit growing thereon, all the interest of the mortgagor in and to the butter and cheese to be made from the cows." This mortgage was attacked on the ground that a chattel mortgage could only operate upon property in existence at the time of its execution, and could not be given upon the future products of land. The ruling on this point was that at law a sale or mortgage of property to be acquired in the future, (the vendor or mortgagor neither having acquired the thing nor the agent of its production at the time of making the contract) creates no valid lien on subsisting property. But, if the future acquired property be the product of the present property in the mortgagor, as the wool growing on a flock of sheep, or the produce of a dairy farm, or anything of that character, the mortgage will take effect upon the property as soon as it comes into existence, and will be perfectly binding at law. (Taylor . Foster, 22 Ohio St. 255.) |