36 Barb. 415 | N.Y. Sup. Ct. | 1862
By the Court,
The question is whether hops, growing and maturing on the vines, are real or personal property.
When the argument was opened, I supposed that perhaps the decision of this question was involved in the judgment of the court of appeals in Bishop v. Bishop, (11 N. Y. Rep.
It is conceded, in the very learned argument of the plaintiff's counsel in this case, that the root of the hop is real estate; but he contends that the crop itself, like grain, is personal property. And to' this point he cites Latham v. Atwood, (Croke Charles, 515.) The report of that case states that the question was, “ whether these hops, appertained to the baron or to him in remainder.” And the court held that “ they be like emblements which shall go to the baron or executor of the tenant for life, and not to him in remainder; and are not to be compared to apples or roots which grow of themselves; wherefore adjudged for the plaintiff.”
The same resolution was come to in an anonymous case reported in 2 Freeman’s Reports of Cases in Law and Equity, 210; and afterwards in Fisher 'and Forbes, referred to in 9 Viner, 373, pl. 82. And according to 9 Viner, 372, pl. 77, “ hops growing out of old roots shall go to the executor or administrator, because they grow by the manurance and industry of the owner, and so are emblements.”
The same law is declared in 3 Bacon’s Ab. tit. Ex’rs and Adm’rs, (H), p. 493. And such is the statement of several other authors who undertake to give the rule as it was understood to exist in England prior to our revolution. Most of these authors refer to the case of Latham v. Atwood as authority. The reason of the rule, as stated in the report of that case, is that “ they (hops) be such things as grow by
The reason given hy the court in Latham v. Atwood for holding hops to he personal instead of real estate, is very satisfactory. It is well known that the value of the crop depends in a very great measure—almost entirely—upon the “ manurance and industry of the ownerand like other annual crops, which depended upon yearly cultivation, should go to enhance the persoq&l estate.
The defendant's counsel have submitted a very ingenious argument, the principal point of which is to show that hops are natural products of the earth ; and as such, real estate, like growing trees, grass and fruit. As an original question his argument would he very satisfactory to prove that strawberries and grapes, as now cultivated, grow hy the same “ manurance and industry of the ownerf as hops, and should he put in the same category; although the result would he that they too ought to he treated as personal instead of real estate.
The decisions are not uniform as to the rule which should distinguish between real and personal property, within the meaning of the statute of frauds. In some cases it is held that grass is personal property, if sold in prospect of separation from the freehold. (Roberts on Frauds, 126.) But the majority of the cases hold that if the subject grows spontaneously, without cultivation, or annual cultivation, it is a part of the realty. (6 East, 602. 1 Barb. 542. 1 Denio, 550. 6 Gill & J. 188.) Such undoubtedly were the views of the revisers when they recommended the legislature to enact the provisions contained in the revised statutes, declaring the following, among other things, to he assets, viz : “ Crops growing on the land of the deceased at the time of his death,”
Mullin, Morgan and Bacon, Justices.]
In my opinion, therefore, hops, growing and maturing on the vines, which are produced by annual cultivation and the industry of the owner, are personal chattels within the meaning of the statute of frauds, and as such subject to sale like other personal property.
A new trial should be granted ; costs to abide the event.
New trial granted.