Verdict set aside; new trial ordered.

d. Separate levy of execution on fructus naturales.

Adams V. Smith

1 Breese (Ill.), 221. - 1828.

Opinion of the Court by Justice Lockwood. - This was an action of trespass quare clausum fregit. The defendants plead not guilty, and Adams justified under an execution from a justice of the peace against the plaintiff, by virtue of which, he seized and took the apple trees, etc., in the plaintiff's declaration mentioned.

To this plea, plaintiff below (Smith), demurred, and the court sustained the demurrer, and on trial of the issue of not guilty, the jury found.a verdict for plaintiff below for $130, and judgment was given thereon. To reverse which, a writ of error has been brought to this court. The first error assigned is, that the Circuit Court erred in sustaining the demurrer. The only question presented by the demurrer is, whether on an execution from a justice of the peace, a constable can enter on land, and sell fruit trees there standing and growing? This question is easy of solution. Fruit trees are part and parcel of the freehold, and can, in no sense, be considered as goods and chattels. How far trees growing in a nursery might be considered goods and chattels, is not involved in the question decided by the demurrer, for the plea does not allege them to be nursery trees intended for sale. . The demurrer was, therefore, correctly decided.

Another error assigned is, that the court erred in overruling the motion for a new trial. It has been frequently decided by this court, that overruling a motion for a new trial cannot be assigned for error. The judgment below must be affirmed with costs.

Judgment affirmed.

2. Fructus Industriales. a. What they are.1

Sparrow V. Pond

49 Minnesota, 412. - 1892. [Reported herein at p. 171.]

1 See also Graves v. Weld, 5 B. & Ad. 105, reported infra, p. 403. - Ed.

Smith V. Price

39 ILLINOIS, 28. - I865.

[Reported herein at p. 163. ]

b. Effect on fructus industriales of sale of land.

(1.) In General.

Tripp V. Hasceig

20 Michigan, 254. - 1870.

Graves, J. - The plaintiff in error sued Hasceig for the alleged conversion of a quantity of standing corn, which Tripp claimed as his property, and upon the trial a verdict passed for Hasceig. Tripp now brings error and insists that the circuit judge erred in charging the jury, and he asks that the judgment be reversed therefor.

The evidence conduced to show that Tripp, being the owner of a farm in Kalamazoo county, on which he resided and on which he had raised a field of corn in the season of 1865, conveyed the farm to defendant about the 13th of December, in the same year, by warranty deed, while the corn was still standing, unsevered, where it grew, and without inserting in the deed any exception or reservation; and that Hasceig took and appropriated a part of the crop as properly conveyed to him by the deed. It was claimed by Tripp on the trial that the crop, being over ripe when the deed was given, did not pass by the conveyance, but the circuit judge advised the jury that the corn, though ripe and no longer deriving nourishment from the ground, would, if still attached to the soil, pass by conveyance of the land; and this is one of the rulings complained of.

We think this instruction was right, and we concur in the suggestion of the circuit judge, that whether the corn would pass or not, could no more depend upon its maturity or immaturity, than the passage of a standing forest tree by the conveyance of the land, would depend upon whether the tree was living or dead.

It is true that the authorities in alluding to this subject very generally use the words growing crops, as those embraced by a convey-ance of the land, but this expression appears to have been commonly employed to distinguish crops still attached to the ground, rather than to mark any distinction between ripe and unripe crops.

In some cases, where the question has been raised under the statute of frauds, as to the validity of verbal sales of unsevered crops, a distinction has been drawn between such as were fit for harvest, and such as were not, upon the supposition that the former would not be within the statute, while the latter would be embraced by it. See cases referred to in Austin v. Sawyer, 9 Cow. R. 39.1 In Austin v. Sawyer, however, Chief Justice Savage seems to have rejected the distinction, as he held that a verbal sale of growing crops was valid in New York.

But one case has been cited, or is remembered, in which it has been intimated that a mature and unsevered crop would, because of its being ripe, remain in the grantor of the land, on an absolute conveyance of the premises without exception or reservation; and that is the case of Powell v. Rich, 41 111. 466, and the point was not essential to the decision there.

There are many authorities, however, opposed to the distinction suggested in that case. 2 Bl. Com. 122, note 3; Broom's Maxims, 354, margin.

In Kittredge v. Woods, 3 N. H. 503 Judge Richardson cites Went-worth, 59, for the proposition that "When the land is sold and conveyed without any reservation, whatever crop is upon the land passes," and after stating that ripe grain in the field is subject to execution as a chattel, Judge Richardson adds: " Yet no doubt seems ever to have been entertained that it passes with the land when sold without any reservation." And in the case of Heavilon v. Heavilon, 29 Ind. 509, cited by plaintiff's counsel on another ground, the court expressly admit that until severance, the crop, as between vendor and purchaser of the land, is part of the realty. Indeed, the authorities are quite decisive that, whether the crop of the seller of the farm goes with the land to the purchaser of the latter, when there is no reservation or exception, depends upon whether the crop is at the time attached to the soil, and not upon its condition as to maturity. And this seems to be the most natural and most practical rule. When parties are bargaining about land, the slightest observation will discover whether the crops are severed or not, and there will be no room for question or mistake as to whether they belong with the land or not, if owned by the vendor.