120 Wis. 42 | Wis. | 1903
“The general rule of the common law is that growing crops-form a part of the real estate to which they are attached, and from which they draw nourishment; and, unless there has been a constructive severance of them from the land, they*46 follow the title thereto. Thus, in the case of a voluntary conveyance of land they pass to the grantee, unless specially reserved by the grantor; or, in the case of a lease of the land the crops pass to the lessee unless expressly reserved.” 8 Am. & Eng. Eney. of Law (2d ed.) 303, 304.
The reason for the rule is obvious. Ordinarily, the deed •or lease of the land puts the grantee or lessee in possession, and any attempt on the part of the grantor or lessor to reenter and harvest the crops without permission would be a trespass. Skala’s possession was of itself constructive notice to the grantee in the deed of his right to the crop as tenant. Wickes v. Lake, 25 Wis. 71; Cunningham v. Brown, 44 Wis. 72; Coe v. Manseau, 62 Wis. 81, 88, 22 N. W. 155; First Nat. Bank v. Chafee, 98 Wis. 42, 47, 73 N. W. 318. Besides, there is evidence tending to prove that he had actual notice of Skala’s lease. Such evidence appears to be admissible. Pringle v. Dunn, 37 Wis. 449; Brinkman v. Jones, 44 Wis. 498; Helms v. Chadbourne, 45 Wis. 60; Rowell v. Williams, 54 Wis. 636, 12 N. W. 86. This court has recently held:
“Where- the relation of landlord and tenant exists, even though the rent is to be paid in kind, the title to the crops is in the tenant until division is made, unless the contract specifically provides to the contrary.” Rowlands v. Voechting, 115 Wis. 352, 91 N. W. 990.
It is unlike the case of a mere cropper, where the title to the crop remains in the owner of-the land. Kelly v. Rummerfield, 117 Wis. 620, 94 N. W. 649. Neither is the question involved as to whether-the defendant’s son, as grantee in the deed, had any right to collect rent of Skala; since, as indicated, Skala paid the full amount of the rent in advance. See secs. 2194, 2195, Stats. 1898. Thus it appears that Skala had the absolute right to the crop, not only as against the plaintiff, but also as against the defendant’s son, as such grantee, for several days after the execution and delivery of
“Crops, whether growing or standing in the field ready to be harvested are, when produced by annual cultivation, no*48 part of tbe realty. They are, therefore, liable to voluntary transfer as chattels. It is equally well settled that they may be seized and sold under execution.”
Such propositions are supported by the citation of numerous adjudications. 1 Freeman, Executions (3d ed.) § 113, and 3 Freeman, Executions, § 3496. In this last section it is said, among other things, that “the mere sale of a growing-crop operates to sever it from the realty, so that it will no-longer be included in a voluntary or involuntary transfer of such realty.” This court has often recognized the right to-give a valid chattel mortgage upon such growing crops. Comstock v. Scales, 7 Wis. 159; Lanyon v. Woodward, 55 Wis. 652, 657, 13 N. W. 863; Lamson v. Moffat, 61 Wis. 153, 21 N. W. 62.; Merchants’ & M. S. Bank v. Lovejoy, 84 Wis. 601, 609, 55 N. W. 108. On the other hand, “those crops which grow from perennial roots, and which do not require the annual labor of the owner to bring them into existence, are called fructus naturales ” and pass to the heir at law or devisee as a part of the real estate. Id.; Rogers v. Elliott, 59 N. H. 201, 47 Am. Rep. 192; Kirkeby v. Erickson (Minn.) 96 N. W. 705; Sparrow v. Pond, 49 Minn 412, 52 N. W. 36. It is unnecessary to continue the discussion.. We must hold that the crop in question was personal property, and that the plaintiff was not estopped by his deed from acquiring the title and possession to the same and holding-the same as against his grantee, and the defendant acting-under him.
By the Court. — The judgment of the circuit court is af1 firmed.