Order affirmed and judgment accordingly.

f. Levy of execution on growing crops.

Parham V. Thompson

2 J. J. Marshall (Ky.) 159. - 1829.

Robertson, J. - The only question which it is necessary to decide in this case, is whether a creditor who has a fieri facias against the estate of his debtor, is guilty of a trespass, by entering on land in the possession of the debtor, for the purpose of assisting the officer to levy the execution on the growing crops, and afterwards entering, to bid at the sale of the crop, before it is ripe, or is secured. A fieri facias may be levied on a growing crop; it is a chattel. It is "fructus industrialist which goes to the executor. 2 Tidd's Pra. 917; Gill, Executor, 19; 1 Salk. 368; 2 Bl. Com. 428; Toller, 204.

Corn growing, passes to the devisee of the personal property, and not to the devisee of the land. Toller, 204; Swin. 933. It passes by parol contract. Roberts on Frauds, 126; Noble v. Smith et al., 2 Johnson's Rep. 52; I Ld. Raym. 182; Bul. Ni. Pri., 34.

Consequently, although it may be inconsistent, and injurious to sell growing corn, and therefore, the general practice is to wait after the levy until it shall be gathered; yet the legal right to sell it before it shall be gathered, results from its personal character and the right to levy on it. See Tidd, 91, and Whipple v. Foote, 2 Johnson's Rep. 422. The argument "ab inconvenienti," applies no more to this case than it would to the mere right to sell anything else which is immature; as a colt or a pig.

The creditor, therefore, is not a trespasser, by entering with the sheriff, to levy and to sell; nor for directing the sale, and purchasing the crop, if the process be regular, the judgment valid, and the sale fair, as they all seem to have been in this case.

Wherefore, as in this case the court decided according to this opinion the judgment of the Circuit Court is affirmed.

Craddock V. Riddlesbarger

2 Dana (Ky.), 205. - 1834.

Robertson, Ch. J. - Riddlesbarger having obtained a judgment against Craddock, for damages for the conversion of a field of growing corn, which he (Riddlesbarger) had bought at a sale under a fieri facias, as the property of one of the defendants in the execution, Craddock now urges a reversal of the judgment, and relies on three grounds: - First, that there was no judgment that authorized the execution; second, that growing corn was not liable to sale in virtue of a fieri facias; third, that the Circuit Court erred in rejecting evidence offered by Craddock, and in instructing the jury, and in withholding instructions.

As we are of the opinion, that the judgment and the replevin found exhibited in the record, authorized the execution, and sufficiently correspond with it, and with each other, for every purpose of reasonable certainty, we shall, without a more particular notice of the first ground, proceed to the consideration of the second and third grounds.

Second. Although such annual productions or fruits of the earth as clover, timothy, spontaneous grasses, apples, pears, peaches, cherries, etc., are considered as incidents to the land in which they are nourished, and are, therefore, not personal, nevertheless everything produced from the earth by annual planting, cultivation and labor, and which is, therefore, denominated for the sake of contradistinction, fructus industriates, is deemed personal, and may be sold, as personalty, even whilst growing and immature. And the purchaser of such an article in such a growing state will have the consequential right of ingress and egress, for purposes of cultivation, preservation and removal, though he will have acquired no interest in the land itself, nor any other control or dominion over it, than such as may be necessarily incident to his right to the growing fructus. Parham v. Thompson, 2 J. J. Marshall, 159, and the authorities therein cited; and also Eaton v. Southby, 2 Willis, 131.

The authorities leave no pretext for doubting that growing corn is a chattel and as such, may be sold by the owner, or taken by an officer in virtue of a process of fieri facias. The only doubt which has been intimated, is as to the proper time of selling under an execution. But, though some have expressed the opinion, that the sale should be postponed until after the corn shall have been matured and severed from the land, and though such a course might often be advantageous to all parties concerned, still it seems to us that, prior to an act of the last Legislature, the law conceded the right to sell the corn in the condition in which it was when the execution was levied on it. The right to levy implies the right to sell, as soon as legal notice can be published of the time and place of sale, and of the thing to be sold. Was it the duty of an officer to keep possession of growing corn for months after his levy, and, in the meantime, cultivate and gather it, or be responsible for its deterioration in consequence of non-cultivation, or for the wasting, or destruction, or abduction of it by the owner, or by other persons? Or was all such hazard and burthen devolved on the creditor? What might have been most expedient in a given case, or what the sheriff, (with the concurrence of the creditor and debtor or either of them,) might have done, is far different from what he had the power to do in virtue of his legal authority. And, not doubting his power to sell growing corn, we must decide accordingly. It is our duty to declare, not to give, the law. * * *

Judgment affirmed.

Penhallow V. Dwight

7 Massachusetts, 34. - 1810.

Trespass for breaking and entering plaintiff's close, and cutting down and carrying away his corn "thereon growing and then fully ripe and fit to be gathered." Defendant justified under an execution against plaintiff.

Curia. - As the defendant had the right, and indeed was obliged by the duty of his office, to enter the close of the plaintiff, and to seize any personal property of the plaintiff, whereby he might satisfy the excution he then held against the plaintiff; the only question is whether corn, then in a proper state to be gathered, but found standing, might, lawfully be cut down and disposed of to raise the money due upon the execution. And we have no doubt that corn or any other product of the soil, raised annually by labor and cultivation is personal estate; and would go to the executor, and not to the heir, on the decease of the proprietor. It is therefore liable to be seized on execution, and may be sold as other personal estate.