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hare the corn. But if husband and wife be joint-tenants of the land, and the husband soweth the ground, and the land surviveth to the wife, it is said that she shall have the corn. If tenant pur terme d'auter vie soweth the ground, and cesty que vie dieth, the lessee shall have the corn. If a man seised of lands in fee hath issue a daughter and dieth, his wife being enseint with a son, the daughter soweth the ground, the son is born, yet the daughter shall have the corn, because her estate was lawful, and defeated by the act of God, and it is good for the Commonwealth that the ground be sown. But if the lessee at will sow the ground with corn, &c., and after he himself determine his will and refuseth to occupy the ground, in that case the lessor shall have the corn, because he loseth his rent. And if a woman that holdeth land durante viduitate sua soweth the ground and taketh husband, the lessor shall have the emblements, because that the determination of her own estate grew by her own act. But where the estate of the lessee being uncertain is defeasible by a right paramount, or if the lease determine by the act of the lessee, as by forfeiture, condition, &c., there he that hath the right paramount, or that entereth for any forfeiture, &c., shall have the corn.
MR. SPENCER’S CASE.
[Reported Winch, 51.] Harvy, Serjeant, came to the bar, and demanded this question of the court, in the behalf of Mr. Spencer: A man was seised of land in fee, and sowed the land, and devised that to I. S., and before severance he died; and whether the devisee shall have the corn, or the executor of the devisor, was the question ; and by HOBERT, WINCH, and HUTTON, the devisee shall have that, and not the executor of the devisor; and HARRIS said, 18 Elizabeth, Allen's Case, that it was adjudged, that where a man devised land which was sowed for life, the remainder in fee, and the devisor died, and the devisee for life also died before the severance, and it was adjudged that the executor of the tenant for life shall not have that, but he in remainder; and WINCH, Justice, said that it had been adjudged, that if a man devise land, and after sow that, and after he dies, that in this case the devisee shall have the corn, and not the esecutor of the devisor, nota bene.
i See Anon. Cro. El. 61.
King's BENCH. 1638.
(Reported Cro. Car. 515.] Trover and conversion of two hundred and fifty pounds of hops. Upon not guilty pleaded, the case appeared to be:
A woman, tenant for life, takes to husband the plaintiff, 5 Car. 1, the remainder being to the defendant for his life. These hops were growing out of ancient roots, being within the land in question; the wite dies the 19th August, 9 Car. 1, the hops then growing and not severed, &c.
The question was, Whether these hops appertained to the husband or to bim in remainder? because she died so small a while before the gathering of them; and they are such things as grow by manurance and industry of the owner, by the making of bills and setting poles.
THE COURT, upon the motion of Grimston, who was of counsel with the plaintiff, held, that they are like emblements, which shall go to the husband or executor of the tenant for life, and not to him in remainder; and are not to be compared to apples or nuts, which grow of themselves. Wherefore adjudged for the plaintiff.
PEACOCK v. PURVIS.
Common Pleas. 1820.
(Reported 2 Brod. & B. 362.) REPLEVIN for growing corn. Cognizances for half a year's rent, due the 12th of May, 1819. Pleas. First, non tenuit; second, a writ of fieri facias issued upon a judgment recovered by the plaintiff, in Hilary term, 1819, against W. Peacock, under which the sheriff seized the corn on the 28th April, 1819, and, having paid the landlord one year's rent, sold the corn (not saying by agreement in writing) to the plaintiff, who then became possessed of the same. There were also pleas, stating a custom for a waygoing crop. General demurrer and joinder.
Hullock, Serjeant, for the defendant.
DALLAS, C. J. Though this question is not altogether new, there certainly are no decisions expressly in point. But different cases have been referred to: first, one in Willes ; next, a case containing a dictum of the late Lord Chief Baron; and I shall begin by adverting to these, before I proceed to investigate the principles on which the present case
must turn. In the case in Willes, the question now before us was not decided, although it was presented for the consideration of the court; because, upon the facts of that case, it became unnecessary to decide it. But it was certainly stated, that if the present question should occur, “it might have required very good consideration, it being a point of great consequence. That goods taken in execution, or even goods distrained damage feasant, are in the custody and under the protection of the law, and, therefore, cannot be distrained for rent, is expressly holden in Co. Lit. 47 a, and several other books; and we are inclined to be of this opinion.” “ But we think we have no occasion to enter any further into this matter, because we are all clearly of opinion, that if there had been no execution in the present case, yet the corn could not be distrained.” That case, therefore, only proves the court to have thought, that this point, if presented for decision, would have required their best consideration. Grilliam v. Barker was similar, in fact, to the present case, though the question before the court in that case is not the question here.
It is admitted that a dictum is to be found in that case, in favor of the landlord's right to distrain, but that was not the point on which the decision turned ; and this dictum of a moment is perhaps impaired by what follows. " I do not think the Statute applies to corn in the blade ; it would be a monstrous thing to cut it in such a state." So that it seems inconsistent with the argument used to-day, and with the Stat
therefore, being a new question, that is, a new question in judgment, and one on which no express decision can be found, we must recur to principle, in order to arrive at a decision; and, in considering the point on principle, we must look to the reason and sense of the thing. With respect to an execution on goods, the course of the sheriff is clear and easy; he seizes, makes a bill of sale, delivers the goods to the purchaser, and retires ; and why does he deliver the goods? because he can deliver them, and is therefore bound to do so : that makes it necessary for us to consider the distinction between goods and growing corn. It is admitted, the law authorizes growing corn to be seized ; and why? To satisfy the judgment.
But the writ of fieri facias would be quite nugatory towards such a
cease the moment the bill of sale is executed, and if he were not allowed to wait till the corn became ripe and valuable, in order to reap the benefit of his purchase. With respect to goods, it is true, the sheriff, or the person purchasing of him, is bound to remove them within a reasonable time; but it is to the delivery that the law looks, and that must be made within a reasonable time; so here, the sheriff is bound to deliver, and in a reasonable time; but being so bound, when is it he can deliver? wben the corn is ripe ; and, after that period, it must not remain an unreasonable time. The question, therefore, always is, What is a reasonable time for delivery? and I fully agree with the counsel for the plaintiff, that the delivery of the crop and the satisfaction of the judgment, are the objects of the law; that not only things actually in the hands of the sheriff are in custodia legis, but that,
s; by those Status, we should refer to the ts the judgmen
sheriff can deliver them, so as to give effect to the judgment. If there be any doubt as to this, we should refer to the Statutes respecting landlords ; by those Statutes, growing corn is considered as goods; and the provisions touching a distress of such corn are, that it is to be distrained as if it were goods and chattels. I put, therefore, the same construction on this case, in favor of creditors, as obtains, under the Statutes, in favor of landlords. My opinion clashes with no authority; and being called on to decide on principle, I think, on principle, the defendant had no right to distrain.
PARK, J. The question was well put by the counsel for the defendant, with the addition which was made by my Brother Burrough ; and that is the fair question in this case. If the decision of the court were any other than it is to be, the effect of the law would be entirely destroyed ; because, how could the law be available to execution, if those who purchased under a sheriff were not allowed to retain what they had bought? But the doctrine is not entirely new ; for, though there was no direct decision on the point in the case in Willes, the language of the court there, is a pretty strong argument, to show that their opinion was against what the defendant contends for. I agree with the counsel for the plaintiff in his argument, that if the law authorizes this property to be taken under an execution, it authorizes everything which will make that execution available. Here, all was done which was requisite to render the seizure legal; the landlord had his deduction fairly allowed at the time, and the purchaser must be allowed to retain what the law has given him.
BURROUGH, J. I have a high opinion of wbatever proceeded from the late Chief Baron Thompson, but I do not think that which has been ascribed to him was his deliberate opinion; and the intimation of the court in Willes is an authority the other way. I am clearly of opinion that these goods were in the custody of the law. For, how does the case stand? Here is a judgment creditor, who purchases growing corn under an execution, but he has no satisfaction till the corn is carried away, and till then, he is under the protection of the law. The case of assignees and executors differs from the present: they stand only in the place of the bankrupt and testator, and there is a continuation of the same right of property ; here, the property is transferred from one hand to another. Supposing we were not to decide as we have done, it would only alter the practice, and cause executions to be kept alive from term to term, it being clear that the landlord is entitled to no more than one year's rent on the execution of a fieri facias.
RICHARDSON, J. I am of opinion, that crops in the hand of the sheriff's vendee are protected from distress; and this is a 'necessary consequence of allowing such crops to be liable to seizure. That, how
ever, is clearly so, though little on the subject is to be found in the books. It has always been held as undoubted, which perhaps is the reason why so little appears; such crops are fructus industriales, which would go to the executor, and therefore have been considered seizable as goods and chattels. But, where the law authorizes a seizure, it authorizes all that which will make the seizure available. Now here the seizure would be utterly unavailable, if the purchaser could not retain that which he bought under the sheriff's sale. Eaton v. Southby '[Willes, 131), comes very near the present case, though there it was not necessary to decide the point; but the Chief Justice, in delivering the judgment of the court, thought growing crops might be protected after sale by the sheriff. Though the Statute of 11 Geo. 2, gives landlords great powers, which they did not possess before, yet it only enabled them to distrain crops in the same manner as other goods. But other goods must always be taken as subject to any prior rights which may have attached to them: here, a right had attached to the crop in question, incompatible with the landlord's distress. In order, therefore, to make the writ of fieri facias available to the purposes for wbich, by law, it was intended, there must be, in this case, –
Judgment for the plaintiff.
GRAVES v. WEL D.
KING's BENCH. 1833.
(Reported 5 B. & Ad. 105.] Trover for clover, the clover hay, and clover seed. Plea, not guilty. At the trial before Taunton, J., at the Dorsetshire Summer Assizes, 1832, a verdict was found for the plaintiff, subject to the following case: –
The plaintiff being possessed of a close under a lease for ninety-nine years, determinable on three lives, in the course of the spring of 1830, sowed it with barley ; and in May of the same year, he sowed broad clover seed with the barley. The last of the three lives expired on the 27th of July, 1830, the reversion then being in the defendant. In the autumn of 1830, the plaintiff took the crop of barley, in the mowing of which a little of the clover plant which had sprung up was cut off and taken together with the barley. In January, 1831, the plaintiff gave up the possession of the close to the defendant. According to the usual course of good husbandry, broad clover is sown about April or May, and the crop is fit to be taken for bay about the beginning of June in the following year. The clover in question was cut by the defendant about the end of May, 1831, which was more than a twelvemonth after the seed had been sown. After the barley is cut, the clover is sometimes depastured by sheep in the autumn, whereby the