98 Ga. 626 | Ga. | 1896
' 1. Under the constitution of 1877, the jurisdiction of a justice’s court over actions arising ex delicto is confined to “cases of injuries or damages to personal property.” Code, §5153; James v. Smith & Bro., 62 Ga. 345, 347; Mayor etc. of Cartersville v. Lyon, 69 Ga. 577, 580; White Star Line Steamboat Co. v. County of Gordon, 81 Ga. 47. It follows that a justice’s court has no jurisdiction of a case in which the plaintiff seeks to recover damages for an injury to realty caused by the wrongful act of the defendant.
2. In the present case, which was commenced in a justice’s court, the plaintiff alleged that the defendant railway
“A fence is generally considered to be a part of the realty.” 7 Am. & Eng. Enc. of Law, 905, 906, citing cases. And to the same effect, see Tyler on Fixtures, 116, 132, 133. Certainly, where the owner of lands builds or maintains thereon a substantial fence, as a permanent structure constituting an improvement of the premises, such fence becomes as much an integral paid of the realty as would a house or brick wall erected thereon. Our code settles this question, for it is declared in section 2219 that: “Anything intended to remain permanently in its place, though not actually attached to the land, sueh as a rail
Our main difficulty in disposing of the .question of jurisdiction raised in this case has been to properly determine the'legal character of the third item of damage claimed by the plaintiff, arising out of the destruction of unmatured cotton growing in his field. Many of the modem textbooks, and numerous adjudicated cases, have, been adverted to during the course of our investigation; but with a result tending rather to confusion than to practical aid, so- far as concerns a correct determination of the question whether, at common law, growing crops were characterized as personal or as real property. For instance, Mr. Freeman says: “Crops, whether growing or standing in the field ready to be harvested, are, when produced by annual cultivation, no part of the realty.” 1 Freeman on Executions, §113. And, in support of his text, he cites cases to show that unmatured crops are “liable to voluntary transfer as chattels,” “may be seized and sold under execution,” and pass “to the executor or administrator of the occupier [of the land], if he die before he has actually cut, reaped or gathered the same.”- On the other hand, it is broadly stated in the American & English Encyclopaedia of Law (vol. 4, p. 887) that: “Growing crops, before maturity and unsevered from the soil, are part and parcel of the land on which they grow, and pass with a conveyance of the land.” Cases almost innumerable are cited as showing that this rale obtains in nearly every State in the Union. This text is then immediately followed by the statement (page -891) that: “Crops ripe for harvest are personal property; they pass to the executor, and not to the heir. They are liable to be seized on execution; and the officer may enter, cut down, seize, and sell the same, as other personal estate-.” On the succeeding page it is said: “Although growing crops are part of the realty, unless severed from the soil, yet, for the purpose of levy and sale on execution, they
Any one wishing to further entangle himself in the mystic maze of uncertainty and contradiction in which the law governing growing crops has become involved, may profitably direct his attention to the legion of cases cited by the various text-writers to whom we have above referred —the field thus open to him is promising even unto distraction. Such a rich mine of abstruse legal learning is doubtless of untold value. It has not, however, proved helpful in the decision of the present case, nor led us to •an understanding of the general principle underlying the
We may in the outset remark that, in our opinion, growing crops, before actual severance from the soil, were consistently regarded at common law as realty. Whatever incongruities may have crept into the law upon the subject as now understood in many jurisdictions, we believe attributable alone to a misconception on the part of courts-of the present day of the rules which governed this species, of property under the feudal system prevailing in England at an early period of its history. Especially would it seem that the principle which underlies the doctrine of emblements has been too' often overlooked, disregarded, misunstood or misconstrued. Blackstone tells us that in feudal times, when a common recovery suffered by the tenant of the freehold had the effect of annihilating all leases for years then subsisting, estates for years were necessarily of a precarious nature and of short duration. 2 Bl. Com. 143. The hardship attending a thus sudden termination of the
The whole doctrine of emblements was based upon two reasons: (1) upon natural justice and equity; (2) upon grounds of public policy. The substantial merit of the first reason assigned is apparent; how public policy was sub-served by an application of' the doctrine, is explained by
Again, as has been seen, many text-miters call attention to the fact that, at common law, an execution could be levied on a growing crop — evidently regarding this as persuasive authority for the statement that such crops were considered personalty. In this view we cannot concur. As is well known, under the feudal system, alienation or encumbrance of estate was strictly prohibited. Even a tenant in fee had no power to sell, mortgage or otherwise encumber the estate of inheritance held by him. And so long as this restraint upon alienation continued, the owner in fee was, in effect, no more than a life-tenant. Creditors had, therefore, to look solely for payment to property of their debtor in which he could, because having a right under the law to alienate the same, claim an unqualified and exclusive interest, and as to which the heir to the inheritable estate had no vested rights. Crops raised by the
It will further be observed that Blackstone seems very studiously to avoid characterizing even “emblements” as personalty, but very happily, we think, remarks instead that-they are “subject to many, though not all, the incidents attending personal chattels.” And herein we believe he has struck the keynote explaining how, in later times, growing crops have come to be considered personalty, simply because, the law having placed upon them many incidents common alike to chattels, no reason ordinarily exists for observing their true status as realty; and therefore the distinction which really still survives between them and mere chattels has not been clearly and consistently kept in view. Under various rules of law, many “incidents” attend, and are alike common to, both real and personal property. Eor instance, a new and special tax upon property might be laid upon both realty and personalty, irrespective of their inherent character, and yet this would really make-them no closer kin than they were before. "We have al
That growing crops were subject to forfeiture upon outlawry, may likewise be explained upon the idea suggested why crops were subject to execution, viz: that the debtor had an alienable, and therefore exclusive, interest therein. In the initial or preliminary proceedings to outlawry, if the recreant debtor persistently failed to obey the summons of the court, a writ was issued “commanding the sheriff to distrein the defendant from time to time, and continually afterwards, by taking his goods and the profits of 7vis lands, which are called issues, and which he forfeits to the king if he doth not appeal1.” 3 Bl. Com. 280. So> it will be seen that his crops were reached, and forfeited, not as chattels, but as “profits of his lands.”
We have already explained how emblements came to be vested in the executor, instead of descending to the heir. The remaining “incident” referred to by Blackstone, viz: that emblements “were devisable by testament before the statute of wills,” will readily be understood as a natural sequence of the doctrine of emblements. As thereunder the executor was empowered to reduce his testator’s crops to possession, the latter could very properly direct in his testament what disposition should be made of the same
We shall not, in the present case, undertake to enter upon any discussion of the effect of the statute of frauds upon private sales of growing crops made by the owner thereof, preferring to make no attempt to successfully cross this dangerous legal bridge until necessity brings us to it. As it would appear an unpromising and impracticable task to try to reconcile the many decisions, English and American, in which this question has been dealt with and discussed, we could .hope to gain no fuller light as to how, in point of fact, growing crops were classified at common law. So we may dismiss the topic by merely remarking that if “for the purposes of such sales, emblements are suffered to be treated as personalty,” the case with which we are now dealing does not fall within this exception to the general rule; nor, indeed, within any other of the “exceptions” referred to by text-writers, or of which we are aware.
We cannot refrain from remarking, in this connection, the embarrassment we have experienced arising out of the practice, which seems to have sprung up in some jurisdictions, of arbitrarily regarding growing crops as personalty for one purpose, and as realty for another. In the very nature of things, this species of property, being tangible in form and possessing many marked inherent characteristics, is capable of being properly classified, and should be given a fixed legal status. Of. course, where there is no imperative necessity for strictly observing and remarking the distinction existing between two entirely different species of property — as where rules of law operating alike upon either class are merely to be construed and enforced, — no vicious consequence or positive harm immediately results from “treating” them as though they were identical in character, or even in inaccurately styling something “personalty”
That growing crops cannot ■ properly be “treated” as. personalty under the law as understood in this State, seems-indisputable in view of the definition of realty contained in section 2218 of the code, which purports to be declaratory of the common law, and which reads as follows: “Realty, or real estate, includes all lands and the buildings-thereon, and all things permanently attached to either, or ■ any interest therein or issuing out of, or dependent thereon.” Following this definition, it was held in Coody v. Gress Lumber Co., 82 Ga. 793, that: “Trees growing-upon land constitute part of the realty; and a sale of' them, under the statute of frauds, must be in writing.” And in Frost v. Render, 65 Ga. 15, wherein it appeared that a sheriff sold under execution land upon which was1growing a crop of cotton, it was held that: “A levy being - on certain land as the property of the defendant in fi. fa., a sale under such levy carries with it the crop growing on the land, and the sheriff cannot limit the sale by an announcement that the rent of the current year is reserved”; for the reason that the law considers growing crops part- and parcel of the land itself, following its ownership as a mere element of value incident thereto. This is certainly the general rule which obtains in this State, and we know of no exceptions thereto- which have gained any foothold in our law on the subject. A review of the decisions previously rendered by this court in cases wherein the question as to the legal character of growing crops arose, shows that they are all in harmony with the conclusion reached in.
Again, in the case of Scolley v. Pollock, 65 Ga. 339, wherein there was a contest between a judgment creditor of a tenant and one who claimed cotton levied on by virtue of a prior purchase from the tenant of his immatured crop, and who had accordingly entered upon the land, cultivated the crop and harvested it when ripe, the decision in Pitts v. Hendriso, supra, was cited approvingly, and it was further said: “Before maturity, the crops only constitute an element of value, and are not themselves distinct chattels. We know of no ruling to the contrary by this court.”
There only remains to be noticed the decision in Hamilton v. The State, 94 Ga. 770, wherein the accused was charged with having fraudulently sold and disposed of personal property upon which she had previously given a mortgage, contrary to the provisions of §4600 of the code. The
The foregoing comprises all the cases of which we have any knowledge, in which this court has dealt with the subject presented by the case at bar.
In the foregoing discussion we have faithfully endeavored to dissipate the darkness which overhangs and envelops the subject at the present day, and to' show that at common law no inconsistency in the treatment of growing crops as realty in fact existed, even though emblements were subjected to many of the incidents which attached to chattels. Whether or not this attempt has been successful, we leave to the reader to determine. That the proper result in this particular case has been reached, we are entirely convinced, and cannot regard as even debatable. The plaintiff was the owner, not only of the crop destroyed, biat also of the land upon which it was growing. His crop, therefore, cannot possibly fall within the term “emblements,” nor properly be considered as even constructively constituting a species of property distinct from the land
3. Our conclusion, therefore, is that the justice’s court had no jurisdiction to entertain the plaintiff’s action. In reaching this result, we have endeavored not to be unduly swayed in our judgment by the importance of this particular case, nor deterred by the thought of the consequences which must inevitably ensue. After deliberate reflection, and after a most painstaking investigation of the law, we are constrained to hold that the recovery of six dollars which the plaintiff obtained in the magistrate’s court cannot legally be upheld. Judgment affirmed.