I. Ordinary use.

1. The Temporary Uses and Profits - Crops and Rents -

Emblements in General.

Babb V. Perley

1 Maine, 6. - 1820. (Reported herein at p. 27.)

Sarles V. Sarles

3 Sandford's Chancery (N. Y.), 601. - 1846.

[Reported herein at p. 450.]

Whipple V. Foot

2 Johnson (N. Y ), 418. - 1807.

Trover for a quantity of wheat in the sheaf. Defendant, the sheriff of Chenango county, had levied upon the wheat while growing and removed the same. After it was gathered, notwithstanding a levy thereon made by plaintiff, the sheriff of Madison county, after the wheat was in the sheaf, defendant sold it. Verdict for defendant subject to the opinion of the court.

Thompson, J., delivered the opinion of the court. If the execution, under which the defendant justifies the seizure and sale of the wheat growing on the ground be deemed sufficient, it is unnecessary to determine the effect of the bill of sale, which forms a distinct branch of the defense. The defendant, soon after receiving the execution, and between the teste, and return of it, went to the house of Hatch, the debtor, and levied on his personal property, and particularly mentioned the wheat in the ground. This was in December. In the ensuing August, when the wheat was ripe for harvest, the defendant, by virtue of the execution, and with all due diligence, caused the wheat to be cut, carried away and sold. The fee of the land on which the wheat was sowed, belonged to one Smith; and Hatch had the use of it so long only as would be sufficient to pay him for clearing. Under these circumstances, I see no valid objections against considering this property as held by this execution. The wheat growing on the ground, was a chattel, and as such, subject to be taken in execution. 1 Salk. 368; 1 Bos. & Pul. 397; 6 East, 604; note Rob. on Frauds, 126. The defendant, when he levied, took all the possession which the subject-matter would permit, and it was sold as soon as it was fit to be reaped. This, therefore, could not be considered as a dormant execution, and coming within the operation of the rule, that if a creditor seize the goods of his debtor on execution, and suffers them to remain in his hands, the execution is deemed to be fraudulent, and void as against a subsequent execution. Prec. in Cha. 286; 1 Vernon, 245; 7 Mod. 37; 2 Term, 596. The reason of this rule is stated to be, that in such case there is no change of possession, and so no alteration of the property. But in the case before us, the sheriff took all the possession of which the chattel was susceptible. The nature of the property accounts for the delay, and destroys the presumption of fraud, that might otherwise exist. The sheriff might, perhaps, have sold the wheat while growing, and the purchaser would then have been entitled to enter for the purpose of cutting and carrying it away. But such a sale would probably have been very unfavorable, as the certainty and value of the crop could not be ascertained. (Owen, 70 Vent. 222.) The mere delay, in such a case, to sell until the crops should be fit for harvest, will not, of itself, amount to a fraud in law; and this is the only ground on which the judgment and execution, under which the defendant justifies, has been impeached. The justification having been made out, the defendant would be entitled to judgment, but by the provision in the case, we can only direct a judgment of nonsuit to be entered.

Judgment of nonsuit.

Graves V. Weld

5 Barnewell & Adolphus (Eng., K. B.), 105. - 1833.

Denman, C. J. - In this case the plaintiff is undoubtedly entitled to emblements. The question is, whether that which is here called the second crop of clover falls under that description. We think it does not.

In the very able argument before us, both sides agree as to the principle upon which the law gives emblements was originally established. That principle was, that the tenant should be encouraged to cultivate, by being sure of receiving the fruits of his labor; but both sides were also agreed that the rule did not extend to give the tenant all the fruits of his labor, or the right might be extended in that case to things of a more permanent nature, as trees or to more crops than one; for the cultivator very often looks for a compensation for his capital and labor in the produce of successive years. It was, therefore, admitted by each, that the tenant could be entitled to that species of product only which grows by the industry and manurance of man, and to one crop only of that product. But the plaintiff insisted that the tenant was entitled to the crop of any vegetable of that nature, whether produced annually or not, which was growing at the time of the cesser of the tenant's interest; the defendant contended that he was entitled to a crop of that species only which ordinarily repays the labor by which it is produced within the year in which that labor is bestowed, though the crop may, in extraordinary seasons, be delayed beyond that period. And the latter proposition we consider to be the law.

It is not, however, absolutely necessary to decide this question, for, assuming that the plaintiff's rule is the correct one, the crop which is claimed was not the crop growing at the end of the term. The last cestui que vie died in July; the barley and the clover were then growing together on the same land, and a crop of both, together, was taken by the plaintiff in the autumn of that year, though the crop of clover of itself was of little value. Thus the plaintiff has had one crop; and if it were necessary, either generally, or in the particular case, that the crop taken should remunerate the tenant, we must observe, that though the crop of clover alone did not repay the expense of sowing and preparation, the case does not find that both crops together did not repay the expenses incurred in raising both. The decision, therefore, might proceed on this short ground; but as the more general and important question has been most fully and elaborately argued, we think it right to say we are satisfied that the general rule laid down by the defendant's counsel is the right one.