When we consider the case of a parol sale of growing corn to A., and a subsequent deed of the land to B., while the corn continued to grow on the land, we must allow that proof of such sale, and notice of the fact given to B., when he took his deed, would establish satisfactorily that the parties to the deed never intended to treat the corn as part of the realty, or as within the conveyance. Does the evidence of such intention vary or contradict the deed? I think not. But these are all cases in which the vested, fixed rights of some third person are involved.
However little favor should be shown to reservations made by the vendor by parol, when he is in possession, there must be some such reservations which are valid. It is, in such instances, a question of intent. Where that intent relates to things which may sometimes be treated as realty, and sometimes as personalty, the evidence of its manifestation in the conduct of the parties, or in their words, at the date of the deed, does not seem to alter, enlarge, or limit their written contract. For, as already observed, that contract does not necessarily embrace such things.
The case of a deed, then, is clearly distinguishable from that of many other written contracts. What such an instrument purports to convey, is to be known from the legal rules which have assigned to it a definite legal character. And when those rules are attentively considered, it will be found that the common words describing the ground conveyed, must always leave it an open question, whether the growing crops were intended as part of the thing, in which the property was to change. In the absence of any proof that any other valid disposition of them attended, or had preceded the deed, that instrument would certainly convey them. But proof of such other disposition would as certainly withdraw them from the conveyance, where the right of any third person interposed itself. Is there any reason for holding that other disposition void, because it was between the parties to the deed, and none other? If not, is such disposition void because the evidence of it is not carried into the writing of conveyance on any presumption that all the agreement is therein witnessed?
This question is not without difficulty. Among the purely artificial rules of evidence, none much more commends itself to regard than that which forbids the parties to a solemn contract, reduced to the certainty of a writing, to alter, vary, limit, enlarge, or contradict what they have thus made certain, by the recollections of witnesses attempting to show what the parties said before or at the time of signing the contract. If, in some instances, the strict observance of this rule may work hardship, such cases are so exceptional, and the reason of the rule is so evident, that nothing less than the caution of a chancellor can make a safe departure from it to correct or set aside the solemn evidence of what the parties have agreed or declared.
From the wise policy of that rule of evidence we are not disposed to depart. But, after a careful examination of the question, and notwithstanding some contrary opinions elsewhere, we have felt it our duty to respect the common understanding of our people on this subject. Custom in Ohio, if not in most of the States, treats growing crops as personalty, even where the strict law laid down by some of the courts would not allow it to assume that character. It would not be difficult to establish that growing wheat, corn, and the like, are generally looked upon as though severed from the land, when a conveyance of the latter is made. On this subject, a section in Greenleaf's Evidence, 337, deserves attention: ' Upon the same principle, parol evidence of usage or custom is admissible 'to annex incidents,' as it is termed; that is, to show what things are customarily treated as incidental and accessorial to the principal thing which is the subject of the contract, or to which the instrument relates. Thus it may be shown by parol that a heriot is due, by custom, on the death of a tenant for life, though it is not expressed in the lease. So a lessee by deed may show that, by the custom of the country, he is entitled to an away-going crop, though no such right is reserved in the deed. This evidence is admitted on the principle that the parties did not intend to express in writing the whole of the contract by which they were to be bound, but only to make their contract with reference to the known and established usages and customs relating to the subject-matter. But, in all cases of this sort, the rule for admitting the evidence of usage or custom must be taken with this qualification, that the evidence be not repugnant to, or inconsistent with, the contract; for otherwise it would not go to interpret and explain, but to contradict that which is written. This rule does not add new terms to the contract, which, as already shown, cannot be done; but it shows the full extent and meaning of those which are contained in the instrument." Now, it is to be observed, that our courts are to take notice of a usage far more respectable than any of the customs above alluded to - a usage showing a common acceptation and understanding of the rules relating to growing crops, which appears rightly to interpret their spirit and purpose. "It has been sometimes said," observed Lord Ellenborough, "communis error facit jus; but I say, communis opinio is evidence of what the law is - not where it is an opinion merely speculative and theoretical, floating in the minds of persons, but where it has been made the groundwork and substratum of practice." Isherwood v. Old-know, 3 M. & S. 396. This language has more fitness, perhaps, when the opinion of lawyers is that respected; but it is not without force when related to a popular construction of the law, which is not forbidden by its terms. Applied to the common understanding of the legal rules respecting growing crops, it seems entitled to regard. In our statute law it is written, that " the emblements are annual crops raised by labor, and whether severed or not from the land of the deceased at the time of his death, shall be assets in the hands of the executor or administrator,and shall be included in the inventory." What more natural than such an enactment in a community like ours? The law harmonizes with the common understanding; and that common understanding itself perfectly agrees with other rules of law on the same subject. In the excellent work of the late Mr. Gwynne, those rules are thus stated: Wheat growing is a chattel, and may be levied upon, under an execution against a defendant who is raising it on land of another. Such annual productions or fruits of the earth as clover, timothy, spontaneous grasses, apples, pears, peaches, cherries, etc., are not personal property, but incidents to the land. Everything produced by annual planting, cultivation, or labor, such as corn or potatoes, may be sold on afi.fa., even when growing and immature. In such a case, the sheriff may wait until the wheat or other crop is ripe for harvest, then cut and carry it away, and sell it. He need not, however, wait, unless required to do so by statute, but may sell before the crop is matured or severed from the ground. Where growing corn is sold, it need not be removed by the purchaser until it is ripe. If left, it will not be liable to distress for rent (where distress is allowed), unless it is left for an unreasonable time. A purchaser on execution of a growing crop, raised annually by labor and cultivation, acquires the right and interest of the defendant in execution to the crop, with the right of ingress, egress, and regress, for the purpose of cutting and carrying it away. The purchaser may lawfully enter and remove the crop, provided it belonged, when sold, to the defendant in execution, although the land on which it was growing, and the crops, were held fraudulently by another person. He does not become a trespasser thereby; nor, by entering with the sheriff to levy and sell, nor by purchasing at the sale." It is due the learned and lamented author of the work from which these sentences are taken (Gwynne on Sheriffs, 220, 221), to keep in mind the subject of his treatise. For the purpose of a levy, growing wheat is certainly, always a chattel; and there is no want of accuracy in what he has said, when his object and meaning are considered in the construction of his language. As we shall presently see, however, the rule is not quite as he has given it.