59 N.H. 201 | N.H. | 1879
The power to attach on mesne process does not exist at common law. It is given by statute, and authorizes the *202 seizure of all property, real and personal, which may be taken on execution. Gen. St., c. 205, s. 1.
The statute specifies what property may be so taken, but grass, ripe and fit for harvest, is not included with it. It was not, then, attachable, unless it could be taken on execution at common law. Gen. St., cc. 217, 218, 219, 220.
At common law, all the goods and chattels of the debtor, including emblements and all present profits of the land, could be taken. Com. Dig., Execution, c. 3.
Emblements were regarded as personal property, but that term does not include fruits which grow on trees which are not planted yearly, grass, and the like. It only includes those crops which grow yearly, and are raised annually by expense and labor, or great manurance or industry. The fruits and products of the earth, other than emblements, while they are hanging by the roots, are a part of the realty. As soon as they are gathered they are personal estate. Bouv. Inst. 471, 1518; 4 Kent. Com. 73.
Things which proceed annually of themselves, without the labor of man, are not emblements, as grass, though improved by the labor of man. Com. Dig., Biens G, 1.
Grass and standing trees are part and parcel of the land in which they are rooted, and as such are real property. They pass to the heir as part of the inheritance, and not to the executor or administrator, and they cannot be sold on an execution against chattels only. 3 Kent. Com. 401; 4 Kent. Com. 73; Green v. Armstrong, 1 Den. 550, 554, 556; Cudworth v. Scott,
The defendants rely on Norris v. Watson,
We have not found it necessary to consider whether, if the grass could have been attached, the attachment could be preserved by leaving a copy of the writ and return with the town-clerk, as in the case of the attachment of the articles enumerated in Gen. St., c. 205, s. 16, and on this point we express no opinion.
When the defendants cut and removed the grass it was not the property of S., because the plaintiff was in possession under her mortgage, and with that possession there was transferred to her the standing grass as part of the realty, and she was entitled to hold it, as against S. and his creditors, until her mortgage debt was paid.
Case discharged.
ALLEN, J., did not sit: the others concurred.