Growing crops are treated in law as personal chattels for the following purposes :-They are transmissible at death Pass to as personal estate. Upon the death of a tenant in fee in executor. possession, whether tenant in fee simple or in fee tail, also upon the death of a tenant for life in possession, the emblements or then growing crops pass to the executor or administrator of the deceased tenant, and not, with the land, to the heir or reversioner (d). So, in the case of a tenant for a certain term of years, if he shall so long live, whose tenancy is determined by his death within the term, the emblements pass to his executor (e).—Growing crops Execution. may be taken in execution as personal chattels under a writ of fieri facias. "The sheriff may sell fructus industriales, as corn growing, which goes to the executor. The distinction is between those things which go to the executor and those which go to the heir; the former may be seized and sold under the fi. fa., the latter cannot. The former must, therefore, in contemplation of law be considered chattels" (f). "But things which give no annual profit, or which proceed without the labour of man, are not emblements; they go to the heir and cannot be seized under a fi. fa." (g). Thus, "growing grass does not come within the description of chattels and cannot be seized as such under a fi. fa.; it goes to the heir and not to the executor; but growing potatoes come within the description of emblements and are deemed chattels by reason of their being raised by labour and manurance" (h). "Growing fruit would not pass to an executor, but to the heir; it could not be taken by the executor of a tenant for life, or levied in execution under a writ of fi. fa. by the sheriff" (i). By the statute 56 Geo. III. c. 50, growing crops are protected from being seized in execution under a (d) Co. Lit. 55 b; Wms. Ex. 599,692, 4th ed.; Hardwicke, L. C. Lawton v Lawton, 3 Atk. 16. (e) Co. Lit. 55 b. (f) Bayley, J. Evans v. Roberts, 5 B. & C. 835. (g) Scovell v. Boxall, 1 Y. & J. 398. (h) Per cur. Evans v. Roberts, 5 B. & C. 832. (i) Per cur. Rodwell v. Phillips, 9 M. & W. 505. Distress. Tenant's right to emblements. fi. fa., where the tenant is restrained by covenant in his lease from removing them off the premises.-By the statute 11 Geo. II. c. 19, s. 8, growing crops are made liable to a distress for rent; and when cut and gathered they may be sold under the distress. If distrained, they may be replevied as goods and chattels (j). Upon the expiration of a tenancy for years by mere lapse of time, the tenant retains no right to the then growing crops, unless by stipulation in his lease, or by a custom of the country respecting them; because the termination of his term being certain he could provide against it. So, if a tenant determines his tenancy by his own act, as by himself giving notice to quit, or surrendering the lease, or committing waste or breach of covenant or condition. which induces a forfeiture, he is not entitled to take the emblements (). As where a woman holding an estate during widowhood, after sowing the land, married, it was held that her estate being determined by her own act, neither she nor her husband could claim to take the crops (7). So a lessee who has forfeited his lease by his bankruptcy, under a proviso for re-entry in that event (m); and the incumbent of a living who determines his estate in the glebe by voluntary resignation, is not entitled to take the emblements (n).—But if the tenancy is determined by an uncertain event over which the tenant has no control; as in the case of a tenant pur autre vie whose tenancy is determined by death of the cestui que vie (o); or of a tenancy for years under a lease granted by a tenant for life, which is determined by the death of the lessor; the tenant is entitled to take the emblements, and to enter upon the land so far as is necessary to take them, after the deter (j) See post, p. 448. (k) Co. Lit. 55b; Wigglesworth v. Dallison, Dougl. 201; 1 Smith, L. C.; see Mansel v. Norton, L. R. 22 C. D. 769. (1) Oland's Case, 5 Co. 116 a. (m) Davis v. Eyton, 7 Bing. 154. (n) Bulwer v. Bulwer, 2 B. & Ald. 470. (0) Graves v. Weld, 5 B. & Ad. 105. mination of his tenancy (p).-It is a "general rule of law applicable to cases of this description, that where a tenant of land has an uncertain interest which is determined either by the act of God or the act of another, there he shall have the emblements; but that is not so where the tenancy is determined by his own act " (q). Thus the lessee of a woman who holds during widowhood, and whose estate is determined by her marriage, is entitled to take emblements; and the lessee of the glebe of an incumbent who resigns; for in these cases the tenancy is determined by the act of another and not by an act of the tenant himself (»).—In the case of a tenancy determining by the death or cesser of the estate of any landlord entitled for his life or for any uncertain interest, it is provided by 14 & 15 Vict. c. 25, s. 1, that instead of claims to emblements the tenant shall continue to hold until the expiration of the then current year of his tenancy; and the succeeding landlord shall be entitled to recover a fair proportion of the rent for the period elapsed from the cesser of the estate of his predecessor; and he may recover this rent by action or by distress (s). Upon the above principles a tenant from year to year Tenancy from whose tenancy is determined by notice to quit from the year to year. landlord is entitled to enblements, because of the uncertainty of the notice (f). Under the Agricultural Holdings Act, 1875, 38 & 39 Vict. c. 92, s. 51, a year's notice is required for tenancies from year to year of agricultural holdings within the Act, in the absence of special agreement respecting the notice. The year's notice would allow the tenant full time for taking an annual crop.-A Tenant at tenant at will is entitled to emblements upon the determination of the tenancy by the will of the lessor, but not if (p) Co. Lit. 55 a, b. (q) Bulwer v. Bulwer, 2 B. & Ald. 471. (r) Pereur. Oland v. Burdwick, Cro. Eliz. 460; Bulwer v. Bulwer, sup. (s) Haines v. Welch, L. R. 4 C. P. 91; 38 L. J. C. P. 118. (t) Kingsbury v. Collins, 4 Bing. 202. will. Tenant at sufferance. Wrongful possession. he determines it by his own will (u). "The law is that if the estate of a tenant at will be determined either by his death or the act of his landlord, he in the one case and his executors or administrators in the other shall reap what he has sown; and that he or his representatives shall have free liberty to come upon the land to cut and carry away the corn." Consequently the landlord can only let the land subject to this right, and he cannot distrain the crops for the rent of the succeeding tenant (r).— A tenant merely at sufferance has no claim to emblements upon the determination of his possession. A mortgagor in possession at law, in the absence of any special agreement as to his relation to the mortgagee, is no more than a tenant at sufferance; he is liable to be treated as tenant or as trespasser at the option of the mortgagee and without any notice; and upon dispossession by the mortgagee he is not entitled to emblements, the mortgagee being entitled to enter and take everything belonging to the land as part of his security (w). But it seems that a lessee of the mortgagor in possession, if dispossessed by the mortgagee, is entitled to emblements, because the mortgagee must be taken to have acquiesced in the letting (r). Now by the Conveyancing Act, 1881, 44 & 45 Vict. c. 41, s. 18, it is provided that, "a mortgagor of land while in possession shall as against every incumbrancer have, by virtue of this Act, power to make from time to time any such lease of the mortgaged land or any part thereof as is in this section described and authorized." But "this section applies only in case of a mortgage made after the commencement of this Act."-A wrongful possession, as that of a disseisor, does not entitle to emblements upon eviction. Where the estate of the tenant is defeasible by a right paramount, he is not entitled to emblements as against the (u) Lit. s. 68; Co. Lit. 55 b; 5 (v) Eaton v. Southby, Willes, 131. Hall, Dougl. 22; Doe v. Maisey, 8 (x) Sanders v. Davis, L. R. 15 Q. B. D. 218; 54 L. J. Q. B. 576. superior title (y). A tenant in wrongful possession, against whom a judgment in ejectment has been obtained, can make no claim to emblements after the date of the claim in the ejectment; nor can they be seized under an execution against him (≈). crops pass Growing crops of all kinds, as being annexed to the Growing soil, presumptively pass by a conveyance of the land, and with the land. by a mortgage of the land; unless expressly excepted. Upon the bankruptcy of a mortgagor in possession, they belong primâ facie to the mortgagee, as against the receiver in the bankruptcy; but if severed at the time of the bankruptcy, they pass to the receiver (a).—They pass also by a Devise. devise of the land, unless expressly excepted, or separately bequeathed (b). A bequest of "farming stock," or of "the stock upon a farm," or of "live and dead stock," or in other like terms, passes the growing crops to the legatee (c). The growing crops may be sold and assigned separately Sale of crops from the land, and crops to be grown on land in future separately. years may be the subject of separate sale and assignment (d). And the right to emblements or growing crops apart from the land, whether arising from sale or from tenant right, implies the accessory right of entering upon the land to take and carry away the crops in due course of husbandry, and also a reasonable allowance of time for that purpose (e).-A contract for the sale of emblements Statute of or growing crops separately from the land is within the 17th section of the Statute of Frauds, which applies to the sale of goods, and not a contract concerning an interest in West v. Moore, 8 East, 339; Evans (d) Petch v. Tutin, 15 M. & W. (e) Lit. ss. 68, 69; Co. Lit. 56 a; Doe v. Me Kaeg, 10 B. & C. 721; Cornish v. Stubbs, L. R. 5 C. P. 334; 39 L. J. C. P. 202. Frauds. |