In Buckout v. Swift, 27 Cal. 443, it was held that a house which stood on mortgaged land, but which was severed from the land subsequently by a storm, did not pass by the sale under foreclosure.

There is no error in the judgment, and it is affirmed.

Affirmed.

Sherman V. Willett

42 New York, 146. - 1870. [Reported herein at p. 209.]

c. Devise of the land, - effect on crops in ground at testator's death.

Stall V. Wilbur

77 New York, 158. - 1879.

Earl, J. - This appeal is from a judgment overruling defendant's demurrer to plaintiff's complaint. Two grounds of demurrer are specified: That the complaint does not state facts sufficient to constitute a cause of action; and that there is a defect of parties plaintiff, in that Richard E. Wilbur and Erastus C. Wilbur should have been joined as plaintiffs.

The complaint alleges that Ephraim Wilbur died February 24, 1873, leaving a will, by which he devised to Richard E. Wilbur, Erastus C. Wilbur, Mary J. Harris, and to the defendant and the plaintiff, a farm, subject to certain advancements to the devisees, which advancements had been satisfied and equalized by the partition and sale of the farm; that the will had been admitted to probate; that at the time of the testator's death there was growing on the farm a crop of wheat, put in on shares by the defendant, under an agreement with the testator, by which he was to cultivate, harvest and thresh the crop, and deliver to the testator one-half thereof on the farm; that after the testator's death the crop matured, and was harvested and threshed by the defendant; that he retained possession of the whole of the crop, and although the plaintiff had often demanded of him her share of one-fifth of one-half thereof, the whole crop being 450 bushels, and her share under the will being forty-five bushels, refused to deliver to her her share, but had sold and converted the same to his own use. There was a second count, precisely similar, based upon an assignment to the plaintiff of the share in the crop of Mary J. Harris.

Growing crops are not part of the real estate upon which they are growing. They are personal property. They can be sold and transferred as such. Austin v. Sawyer, 9 Cow. 40. They can be taken upon execution, and at common law they could be distrained for rent. Whipple v. Foot, 2 J. R. 418. At common law also, upon the death of the owner of the real estate, they passed, not to the heirs, but to the executor or administrator, to be administered as personal assets. They pass with a conveyance of the real estate, as appertaining thereto. Tripp v. Hasceig, 20 Mich. 254. At common law also, they passed to the devisee of the real estate, not as a parcel thereof, but upon the presumed intention of the devisor that he who takes the land should also take the crops growing thereon. Gilbert on Ev. 499; Williams on Ex. 713; Cooper v. Woolfitt, 2 Hurl. & N. 122; West v. Moore, 8 East, 339; Bradner v. Faulkner, 34 N. Y. 347.

This common-law rule was somewhat changed by the Revised Statutes. They provide that growing crops "shall go to the execu-tors or administrators, to be applied and distributed as part of the personal estate of their testator or intestate, and shall be included in the inventory thereof." 2 R. S. 83.1 Under this provision, the executor takes possession of the growing crops, as he does of all other personal property. But he takes possession only for the purpose of administration according to law. He may sell it, if necessary, for the payment of debts and legacies. But when the land, upon which the crop is growing, has been devised in such form as to convey it to the devisee, then the crop, in my opinion, is to be put upon the footing of a chattel specifically bequeathed; and it cannot be sold for the payment of general legacies, and can be sold for the payment of debts only after the other assets, not specifically bequeathed, have been applied. 2 R. S. 87. * * *

It was not necessary for. the plaintiff to allege that there were no legacies to be paid under the will, or that there was sufficient other personal property to pay the legacies, as this property specifically given, as shown above, could not be taken or sold to pay legacies. It could no more be taken for such a purpose than other personal property specifically bequeathed. * * *

As stated, the defendant is in no better position than if he had been executor; and he cannot make a defense which an executor could not make. It matters not whether an executor was appointed or not. The facts showed that the plaintiff was entitled to this property, and that she is the only person injured by the conversion thereof by the defendant.

The complaint is not defective in not joining as plaintiffs the two other co-tenants named in the demurrer. As to such property, separable in respect to quantity and quality by weight or measure, each tenant in common may demand of his co-tenant having possession of the whole his share, and upon refusal or a conversion by such co-tenant, may sue in his own name, without joining all the other co-tenants. Channon v. Lusk, 2 Lans. 211; Lobdell v. Stowell, 37 How. 88; s. c. 51 N. Y. 70.

The judgment must, therefore, be affirmed, with costs.

Judgment affirmed.

1 See § 2712 N. Y. Code Civ, Pro., with subds. 5 and 6. - ED.

d. Death of owner intestate - effect on crop in ground.

Sherman V. Willett

42 New York, 146. - 1870.

Action to recover the value of a crop of rye alleged to have been converted by Cornelius Willett, defendant's testator.

Elmer Willett owned a farm on which he planted the crop in question and died before it was harvested. He had mortgaged the farm to one Cornell and was in default on the mortgage when the crop was planted. Cornell was appointed administrator, and as such sold the growing crop to plaintiff at auction. Afterward, and before the crop was gathered, Cornell foreclosed his mortgage and the land was sold to P. K. Willett, who conveyed the same to defendant's testator. Notice of reservation of the rye was given at the foreclosure sale. Defendant's testator was present at both sales, went into possession of the premises, and would not permit plaintiff to reap the rye, but took it himself. This is the conversion complained of. Judgment below for the plaintiff. Defendant appeals.