23 N.C. 265 | N.C. | 1840
As the law authorizes an execution to be levied (267) upon a growing crop as a chattel, it must afford to the purchaser a remedy against all who unlawfully disturb him in the enjoyment of it. What that remedy should be seems to have occasioned some perplexity with the courts. In New York it appears to be fully settled that the vendee of a growing crop acquires such an exclusive right to the possession of the land whereon it grows as to make that land his close until the crop can be gathered and removed, and that, therefore, he may maintain trespass quareclausum fregit against any who enter thereon without his leave. Stewart v.Doughty, 9 Johns., 108; Austin v. Sawyer, 9 Cowen, 39. And this doctrine is avowedly founded on the analogy which is thought to prevail between the interest which is transferred by such a sale and that which passes under the grant of the vesture or of the herbage of the soil. Our researches and reflections have, however, brought us to a different conclusion.
"If a man hath 20 acres of land, and by deed grant to another and his heirs vesturam terrae, and maketh livery of seizin secundum formam chartae, the land itself shall not pass, because he hath a particular right *206
in the land; for thereby he shall not have the houses, timber, trees, mines, and other real things, parcel of the inheritance, but he shall have the vesture of the land, that is, the corn, grass, underwood, sweepage, and the like; and he shall have an action of trespass quare clausumfregit." Co. Lit., 4 b. "The same law, if a man grant herbagium terrae
he hath a like particular right in the land, and shall have an actionquare clausum fregit; but by grant thereof, and livery made, the soil shall not pass as aforesaid. If a man let to B the herbage of his woods, and after grant all his lands in the tenure, possession or occupation of B, the woods shall pass, for B hath a particular possession and occupation, which is sufficient in this case." Co. Lit., ut supra. These portions ofLord Coke are universally regarded as laying down accurately the law in relation to the interests which pass under a grant of the vesture or of the herbage of land. A grant of this kind, therefore, doth pass, (268) not indeed the whole land, but a particular right in the land itself — and for that purpose, also, "a particular possession and occupation" of the land itself. It passes to the grantee the exclusive right to use and enjoyment of these profits as a parcel of the land; of consequence, the exclusive right to the profits themselves, and of consequence, also, the exclusive possession thereof, as indispensable to the exercise of this right. Burt v. Moore, 5 Term, 330. Wherever there is such an exclusive right to the possession, trespass quare clausum fregit
will lie, because for that purpose the land is the close of the possessor.Wilson v. Mackwreth, 3 Bur., 1826; Hoe v. Taylor, Moore, 365. But the law makes a pointed distinction between those profits which are the spontaneous products of the earth or its permanent fruits and the corn and other growth of the earth which are produced annually by labor and industry, and thence are called fructus industriales. The latter for most purposes are regarded as personal chattels. Upon the death of the owner of the land before they are gathered, they go to his executor and not his heir. Upon the termination of an estate of uncertain duration by an act other than that of the lessee, they belong to him as personal chattels, and do not go over to the owner of the soil; they are liable to be seized and sold under execution as personal chattels, and a sale of them while growing is not a contract or sale of land, or any interest in or concerning land under the statute of frauds, but a sale of goods. See Co. Lit., 55 a, b, and 56 a;Smith v. Tritt,
We see no error in that part of his Honor's instructions which informed the jury that if, from the evidence, they believed the defendant McKay directed, aided, or encouraged the other defendant in the commission of the trespass, he also was liable as a trespasser. The judge did not put McKay's guilt upon the ground of a subsequent assent to the trespass of Bates, as the counsel for the defendants supposes, but upon the ground of previous or contemporaneous direction, aid, and encouragement. Whether the evidence proved such concurrence was a matter for the decision of the jury; for we think there was evidence tending to prove it, and fit for their consideration.
PER CURIAM. No error.
Cited: Robinson v. Gee,
(271)