Sparrow v. Pond

Mitchell, J. At common law those products of the earth which are annual, and are raised by yearly manurance and labor, and essentially owe their annual existence to the cultivation by man, termed “emblements,” and sometimes “fructus industriales,” were, even while still annexed to the soil, treated as chattels, with the usual incidents thereof as to seizure bn attachment during the owner’s life, and transmission after his death. This class included grain, garden vegetables, and the like. On the other hand, the fruit of trees, perennial bushes, and grasses grow» ing from perennial roots, and called, by way of contradistinction, “fructus naturales,” were, while unsevered from the soil, considered [418] as pertaining to the realty, and as such passed to the heir at the death of the owner., and were not subject to attachment during his life. 4 Kent. Comm. p. *73; 4 Bac. Abr. 372, tit. “Emblements;” Freem. Ex’ns, § 113; 1 Schouler, Pers. Prop. § 100 et seq.; State v. Gemmill, 1 Houst. 9; Craddock v. Riddlesbarger, 2 Dana, 205; 4 Amer. & Eng. Enc. Law, tit. “Crops;” Rodwell v. Phillips, 9 Mees. & W. 501. A possible exception to this classification is the case of hops on the vines, which have been held to be personal chattels, and subject to sale as such. The ground upon which this seems to be held is that, although the roots of hops are perennial, the vines die yearly, and the crop from the new vines is wholly or mainly dependent upon annual cultivation. The decisions upon that question, however, seem to be all based upon the old case of Latham v. Atwood, Cro. Car. 515. See Frank v. Harrington, 36 Barb. 415. It is sometimes stated that the test whether the unsevered product of the soil is an emblement, and, as such, personal property, is whether it is produced chiefly by the manurance and industry of the owner. But, while this test is correct as far as it goes, it is incomplete. Under modern iniproved methods, all fruits are cultivated, the quality and quantity of the yield depending more or less upon the annual expenditure of labor upon the trees, bushes, or vines; but it has never been held that fruit growing upon cultivated trees was subject to levy as personal property. No doubt all emblements are produced by the manurance and labor of the owner, and are called “fructus industriales ” for that reason; but the manner, as well as purpose, of planting is an essential element to be taken into consideration. If the purpose of planting is not the permanent enhancement of the land itself, but merely to secure a single crop, which is to be the sole return for the labor expended, the product would naturally fall under the head of “ emblements.” On the other hand, if the tree, bush, or vine is one which requires to be planted but once, and will then bear successive crops for years, the planting would be naturally calculated to permanently enhance the value of the land itself, and the product of any one year could not be said to essentially owe its existence to labor expended during that year; and hence [419] it would be classed among “fructus naturales,” and the right of em-blements would not attach. Darlington, Pers. Prop. 26. This classification is, of course, more or less arbitrary, but it is the one uniformly adopted by the courts, (unless hops be an exception,) and it is the only one which will furnish a definite and exact rule. Blackberry bushes are perennial, and when planted once yield successive crops. They grow wild, but, like every other kind of fruit or berry, are improved by cultivation. The quantity and quality of the yield is largely dependent upon the amount of annual care expended upon them, but the difference in that respect between them and other fruits is only one of degree. It seems to us quite clear that at common law such berries, while growing upon the bushes, were not subject to levy on execution as personal property, and we have no statute changing the rule. Evidently the main purpose of 1878 G-. S. ch. 66, § 316, was, while permitting immature growing crops to be levied on, to prohibit their sale until they were ripe and fit be harvested. The word “crops” had, long before this statute, acquired in law a meaning synonymous with or equivalent to the common-law term “ emblements,” and neither of them included fruits or perennial trees or shrubs, and it is to be presumed that the term “ crops ” is used in the statute in this same sense. The only-change effected by the statute as to the kinds of products of the earth which may be levied on while still attached to the soil is, perhaps, to include perennial grasses. As we are of opinion that these berries, while growing on the bushes, were not subject to levy as personal property, it becomes unnecessary to consider any other question in the case. To prevent misapprehension hereafter, it may be well, however, to say, with reference to the question whether crops growing upon a homestead under the statutes of the state are subject tp levy, or whether their seizure would be an interference with the beneficial use and control of the homestead by the debtor, .that it is not determined, as counsel for appellant assumes, by the case of Erickson v. Paterson, 47 Minn. 525, (50 N. W. Rep. 699.) In that case the grain grew upon land entered under the United States homestead law', by the provisions of which. the land was not liable for debts [420] contracted prior to the issuing of the patent, the exemption not being at all dependent upon occupancy and use as a home. (Opinion published 52 N. W. Rep. 36.) Hence that case would not necessarily control the question discussed in the present ease/ Judgment affirmed.