The word "crops" had, long before this statute, acquired in law a meaning synonymous with or equivalent to the common-law term "emblements," and neither of them included fruits or perennial trees or shrubs, and it is to be presumed that the term "crops" is used in the statute in this same sense. The only change effected by the statute as to the kinds of products of the earth which may be levied on while still attached to the soil is, perhaps, to include perennial grasses. As we are of opinion that these berries, while growing on the bushes, were not subject to levy as personal property, it becomes unnecessary to consider any other question in the case.
To prevent misapprehension hereafter, it may be well, however, to say, with reference to the question whether crops growing upon a homestead under the statutes of this State are subject to levy, or whether their seizure would be an interference with the beneficial use and control of the homestead by the debtor, that it is not determined, as counsel for appellant assumes, by the case of Erick-son v. Paterson, 47 Minn. 525, 50 N. W. Rep. 699. In that case the grain grew upon land entered under the United States homestead law, by the provisions of which the land was not liable for debts contracted prior to the issuing of the patent, the exemption not being at all dependent upon occupancy and use as a home.
Hence, that case would not necessarily control the question discussed in the present case.
140 New York, 390. - 1893.
Andrew, Ch. J. - We think the surrogate erred in charging the executrix with the sum of $173.29, the amount received by her for hay grown upon the farm in 1889. The testator died in June of that year, and the tenant of the farm, who worked it upon shares, cut the grass thereafter and paid over to the executrix that sum as her share of the proceeds of the hay under the agreement with the testator. The executrix was devisee for life of the farm. Growing grass partakes of the nature of realty. Neither at common1aw nor under our statute does it go as assets to the executor or administrator, but follows the land and belongs to the heir or devisee. Evans v. Roberts, 5 B. & C. 820; Kaine v. Fisher, 6 N. Y. 597; 2 Rev. St. 82, sec. 6, sub. 6.1 On the other hand, corn and other annual crops_ produced by care and cultivation, and not growing spontaneously, are at common law, as between heir and executor or administrator, treated as chattels, and under our statute are assets for the payment of debts even as against the devisee. Williams on Ex'rs, vol. 1, p. 70; 2 Rev. St. 82, sec. 6, sub. 5; State v. Wilbur, 77 N. Y. 158.
It must be assumed, in the absence of evidence, that the executrix took the proceeds of the hay in the character of life tenant and not as executrix. There was no change in the legal character of the grass by any act or contract of the testator in his lifetime. His share in the proceeds of the grass was in the nature of rent reserved, which accrued after the testator's death. The decree should, therefore, be modified by deducting from the amount charged against the executors the sum of $173.29, and any interest which may have been allowed thereon. * * *
The judgment below should be modified in conformity with this opinion and as modified affirmed, without costs to either party.
b. Effect on fructus naturates of sale, devise, or mortgage of the land.
(1.) In General.
4 Kansas, 426. - 1868.
By the Court, Bailey, J. - This was an action for trespass, commenced before Alonzo Cottrell, J. P., by plaintiff in error, against defendant in error, to recover the value of three loads of wood, hauled from the land of the plaintiff in error, by the defendant in error, claiming triple damages under the provisions of ch. 208 of the Comp. L. The action was commenced on the 28th day of December, 1866, and after several continuances, was tried by a jury, who found a verdict for the plaintiff. The defendant appealed, and the cause was again tried at the April term of the District Court of Marshall county, 1867, and judgment rendered for the defendant.
The plaintiff in error, who was also the plaintiff below, now brings the case to this court to procure a reversal of the last mentioned judgment.
It appears from the bill of exceptions that the defendant, Downey, and one Abraham Gossuclc, were the former owners of the land on which the alleged trespass was committed, and that Gossuck and wife conveyed all their interest in the land to Caloni Walworth, by deed dated February 10th, 1865, and that subsequently, on the 2Sth of August, 1865, defendant, Downey, conveyed all his interest in said land to Walworth, without any reservation whatever, and that said Walworth conveyed the land to plaintiff by deed of warranty, without reservation.
1 Sec § 2712, N. Y. Code Civ. Procedure. - Ed.
On the trial, the defendant filed no answer to plaintiff's petition on appeal, but offered himself as a witness to prove, with others, that there was a parol reservation of the dead and down timber in the deed from Downey to Walworth, and also in the deed from Walworth to plaintiff, Cockrill. Objection was made to this evidence, but the objection was overruled by the court, and the evidence admitted. We think the court erred in admitting the evidence. The policy of our laws, as evinced by the whole tenor of the legislation as to registration of deeds and the like, is to make titles to real estate depend upon the written deeds of the parties, leaving the smallest possible margin for parol contracts, understandings and reservations.
A deed of land must be, we think, deemed to involve all timber standing or growing on it, unless specially excepted. As to trees standing and growing in the soil, we apprehend that no question would be made; but a tree may be standing and not growing, or growing in a horizontal position, not standing.