This reasoning appears to me to be conclusive. The plaintiff, therefore, according to the stipulation of the parties in the case, is entitled to judgment for $40 damages and $30 costs.1

t. Y. 484; supra, p. 164. - Ed.

This rule, we think, is not applicable to grain which has matured and is ready for the harvest. It then possesses the character of personal chattels, and is not to be regarded as a part of the realty. See I Schouler's Personal Property, 125, 126; Bingham on Sales of Real Property, 180, 181.

This conclusion is well supported upon the following reasons: The grain being mature, the course of vegetation has ceased and the soil is no longer necessary for its existence. The connection between the grain and the ground has changed. The grain no longer demands nurture from the soil; the ground now performs no other office than affording a resting place for the grain - it has the same relations to the grain that the warehouse has to the threshed grain or the field has to the stacks of grain thereon. It will not be denied that when the grain is cut it ceases to be a part of the realty. The act of cutting, it is true, appears to sever the straw from the land. But it is demanded by the condition of the grain. It is no longer growing; it is no longer living blades which require the nourishment of the soil for its existence and development. It is changed in its nature from growing blades of barley or oats to grain mature and ready for the reaper. Now the mature grain is not regarded by the law like the growing blades, as a part of the realty, but as grain in a condition of separation from the soil.

Suppose the defendant had cut a part of the seventy-two acres of grain in controversy; the grain so cut, it will not be denied, would not have passed to plaintiff. There is no valid reason why the act of cutting should change the property in the grain. The work required time and, therefore, plaintiff loses a part of his property. All of the grain is in the same condition, all ready for the reaper. The part cut is his property, while the part uncut belongs to the landowner. We think the ownership of the grain should be determined by its condition, not by the act of cutting, which cannot be done as soon as it is demanded by its condition. We conclude that for the reason the grain was mature and was uncut because defendant has been unable to do the work, it cannot be regarded as part of the realty which passed with the deed to plaintiff.

Counsel for defendant insists that as defendant was in the adverse possession of the land, the action of replevin will not lie to recover the grain. We find it unnecessary to determine the question thus raised, as we hold that defendant's right of property in the grain accrued when the grain matured, whether he did or did not hold adversely to the plaintiff after the sheriff's deed was executed. The judgment of the Circuit Court must be reversed.

Willis V. Moore

59 Texas, 628. - 1883.

Moore was the owner of a cotton plantation which he mortgaged by a deed of trust to secure a debt to Reed & Smith. Thereafter he let one John A. Gill into possession of the premises to work the same on shares, and then sold his own share of the proceeds to Alex. J. Gill. Later on and while the crop of 1881 was ungathered the land was sold under the mortgage and bought by plaintiff Willis. A. J. Gill sold the crop and claimed the one-half of the proceeds under his contract with Moore. Willis sues for this money, making all persons likely to be interested parties to the action. Judgment for the defendants. Plaintiff appeals.

Stayton, J. - The deed in trust made by Lewis Moore to secure the notes executed by him to Reed & Smith, having been duly recorded, it must be held that A. J. Gill bought the interest of Lewis Moore in the crop upon the land on the 1st of August, 1881, with notice of whatever right the appellant, by virtue of the transfer of the notes, which carried with them as an incident the security evidenced by the trust deed, had in the crops then standing ungathered upon the land.

There might be some difficulty in determining the true relation which existed between Lewis Moore and J. A. Gill, under the agreement of date December 24, 1877; but it is treated by appellant's counsel as a partnership, in which, for their mutual benefit, the land was cultivated by the latter, the material for that purpose being in part furnished by each, the net proceeds to be equally divided between them. This is probably the true relationship of the parties, rather than that they were landlord and tenant, and we will so consider them in disposing of the case. It does not appear when the notes to Reed & Smith matured, but it is found that they were due and unpaid on the 8th of September, 1881, at which time the substituted trustee sold the land, and thereby the appellant became the owner thereof.

The question for our decision then is, is the purchaser of mortgaged lands, as against the mortgagor or any person claiming under him by a purchase of the crops, entitled to such crops as were standing ungathered upon the land at the time of his purchase? A. J. Gill does not necessarily stand in the same relation to this question as would Lewis Moore were he the claimant.

That in England and in many States of this Union, the mortgagee is deemed the holder of the legal title, cannot be questioned; and that upon such title he may maintain ejectment against the mortgagor. Where such is the rule, many decisions are to be found in which it is held that neither the mortgagor, nor a tenant under him claiming through a lease made after the execution of the mortgage, is entitled to carry away the crops growing upon the mortgaged land at the time of foreclosure or actual entry by the mortgagee; and this upon the theory that, from the date of the mortgage, the mortgagor is but a tenant at sufferance; and that a lease made by him, being unauthorized, works a disseisin. [The judge then quoted at length from Lane v. King, reported herein at p. 197.]