It is otherwise with growing crops, as wheat and corn, the annual' produce of labor and cultivation of the earth; for these are personal chattels, and pass to those entitled to the personal estate, and not to the heir. Toller, 150, 194; 2 Black. Com. 404. They may also be sold on execution like other personal chattels. Whipple v. Foot, 2 John. 418; Jones v. Flint, 10 Adol. & Ellis, 753; Peacock v. Purvis, 2 Brod. & Bing. 362; Hartwell v. Bissell, 17 John. 128.
These principles suggest the proper distinction. An interest in personal chattels may be created without a deed or conveyance in writing, and a contract for their sale may be valid although by parol. But an interest in that which is land can only be created by deed or written conveyance; and no contract for the sale of such an interest is valid unless in writing. It is not material and does not affect the principle, that the subject of the sale will be personal property when transferred to the purchaser If, when sold, it is in the hands of the seller, a part of the land itself, the contract is within the statute. These trees were part of the defendant's land, and not his personal chattels. The contract for their sale and transfer, being by parol, was, therefore, void.
The opinion of the court in the case of Dunne v. Ferguson, 1 Hayes Irish R. 542, contains one of the best illustrations of this question. That case is thus stated in Stephen's N. P. 1971: "The facts of the case were, that in October, 1830, the defendant sold to the plaintiff a crop of turnips, which he had sown a short time previously, for a sum less than ten pounds. In February, 1831, and previously, while the turnips were still in the ground, the defendant severed and carried away considerable quantities of them, which he converted to his own use. No note in writing was made of the bargain. It was contended for the defendant that the action of trover did not lie for things annexed to the freehold, and that the contract was of no validity for want of a note or memorandum in writing pursuant to the Statute of Frauds. Upon the foregoing facts Chief Baron Joy observed, (Barons Smith, Pennefeather and Foster, concurring,): The general question for our decision is, whether there has been a contract for an interest concerning lands within the second section of the Statute of Frauds? or whether it merely concerned goods and chattels? And that question resolves itself into another, whether or not a growing crop is goods and chattels? In one case it has been held, that a contract for potatoes did not require a note in writing, because the potatoes were ripe; and in another case, the distinction turned upon the hand that was to dig them, so that if dug by A. B., they were potatoes, and if by C. I)., they were an interest in lands. Such a course always involves the judge in per-plexity, and the case in obscurity. Another criterion must, therefore, be had recourse to; and, fortunately, the later cases have rested the matter on a more rational and solid foundation. At common law, growing crops were uniformly held to be goods; and they were subject to all the leading consequences of being goods, as seizure in execution, etc. The Statute of Frauds takes things as it finds them, and provides for lands and goods according as they were so esteemed before its enactment. In this way the question may be satisfactorily decided. If, before the statute, a growing crop has been held to be an interest in lands, it would come within the second section of the act, but if it were only goods and chattels, then it came within the thirteenth section. On this, the only rational ground, the cases of Evans v. Roberts, 5 Barn. & Cress. 829; Smith v. Surman, 9 Id. 561; and Scorell v. Boxall, 1 Young & Jer. 396, have been decided. And as we think that growing crops have all the consequences of chattels, and are like them, liable to be taken in execution, we must rule the points saved for the plaintiff."
Various other decisions have proceeded on the same principle, although it has nowhere been stated and illustrated with the same clearness and force as in the opinion of Chef Baron Joy.
The following cases may be cited to show that growing crops of grain and vegetables, fructus industrials, being goods and chattels, and not real estate, may be conveyed by a verbal contract, as they may also be sold on execution as personal chattels. Carrington v. Roots, 2 Mees. & Wels. 248; Sainsbury v. Mathews, 4 Id. 343; Randall v. Ranter, 2 John. 421, note; Mumford v. Whitney, 15 Wend. 387; Austin v. Sawyer, 9 Cowen, 39; Jones v. Flint, 10 Adol. & Ellis, 753; Warwick v. Bruce, 2 Maule & Selw. 205; Graves v. Weld, 5 Barn. & Adol. 105.
But where the subject-matter of a contract of sale is growing trees, fruit, or grass, the natural produce of the earth, and not annual production raised by manurance and the industry of man, as they are parcel of the land itself, and not chattels, the contract, in order to be valid, must be in writing. Teal v. Auty, 2 Brod. & Bing. 99; Putney v. Day, 6 N. Hamp. R. 430; Olmstead v. Niles, 7 Id. 522; Crosby v. Wadsworth, 6 East, 602; Rodwell v. Phillips, 9 Mees. & Wels. 501; Jones v. Flint, 10 Adol. & Ellis, 753.
The contract in this case was within the statute, and being by parol was void. The judgment of the common pleas must be affirmed.
6. In the Order in Which Property May be Reached for the Satisfaction of Debts of its Owner.
42 Mississippi, 465. - 1869.
Shackelford, C. J., delivered the opinion of the Court.
This was a bill filed in the Chancery Court of Holmes county, by Ann H. Webster and her husband, against the defendants in error, to enjoin the sale of the southeast quarter of section 16, town 13; of range No. 2, east, levied upon by virtue of certain writs of fieri facias, issued upon judgments obtained against J. M. Stigler, sheriff, and administrator de bonis non of the estate of Robert Howard, deceased.