183 P.2d 889 | Colo. | 1947
THIS is a proceeding to determine the ownership of a corn crop standing on land at the time of transfer of the realty by warranty deed without reservations. The parties are here in reverse order of their appearance in the *594 trial court and we hereinafter refer to them as plaintiff and defendant.
Plaintiff and defendant are husband and wife, but for some time prior to this proceeding had not been living together. In settlement of a suit brought by her against him, he gave her a warranty deed to a half section of land, less a reserved strip. The deed was executed and delivered on the 28th day of September, 1943. It contained no reservations, except as above noted, and the land was represented as free and clear. At the time the deed was executed and delivered there was a corn crop standing on the land which had been raised by renters under a crop payment plan of one-third of the crop to the landlord. Defendant took the one-third share, sold it and received four hundred ninety-one dollars therefor. Plaintiff, claiming it belonged to her, brought this suit, recovered judgment for four hundred ninety-one dollars against defendant and she brings the case here urging as points for reversal that: (1) The findings and judgment are contrary to the law and the evidence; (2) The court erred in entering judgment for the plaintiff and against defendant; (3) the court erred in not rendering judgment for defendant on her counterclaim; and (4) the court erroneously held that a corn crop became personal property and does not pass with a deed to the land as soon as the corn ceases to draw substance from the ground, although the corn may not be ready to harvest or to gather and crib, and that the court should have held that the corn crop is a part of the real estate until it has been severed from the ground on which it was growing, and the landlord's share passes to the grantee of a deed unless reserved. The first two and the last points will be considered together.
[1] 1. Does a deed of land carry with it unharvested crops standing on the land at the time the deed is executed?
On this question there is a sharp conflict of authority. It is conceded to be the general rule that growing crops *595
pass with a deed to the land. Some authorities hold that, "Until a crop is severed from the land on which it is grown it is such a part of the real estate as will pass by a conveyance or devise of the land, unless reservation thereof is made, notwithstanding the fact that the crop may be fully matured at the date of the conveyance." 8 R.C.L., p. 360, § 6. And it is said in 66 Corpus Juris, page 1038, section 790, that: "Unless they are reserved or excepted, crops attached to the land at the time of a sale or conveyance of the land so far partake of the nature of realty that they pass to the purchaser by the sale or conveyance as appurtenant to the land. The rule applies regardless of whether the crops are unripe or matured, so long as there has not been a severance, actual or constructive, of such crops from the land." It also was held in Firebaugh v. Divan,
On the other hand it has been held that, "The rule that growing crops pass with a conveyance of the land, only applies to crops that are still drawing nutriment from the soil and is not applicable to crops that are ripe and ready for harvest." 8 R.C.L., p. 360, § 6; and it was held in National Bank v. Beegle,
The present case was tried to the court without a jury which found on good and sufficient evidence, it seems to us, that the corn crop was matured at the time the title passed from plaintiff to defendant September 28, 1943. The court held that corn is matured when it stops drawing sustenance from the soil and that when *597 that time comes, it becomes personal property and does not pass with the title to the land.
We cited with approval, and followed the rule laid down in National Bank v. Beegle, supra, in the case ofTolland Co. v. First Nat. Bank,
We are of the opinion that the trial court was right in holding that the corn crop was personalty and did not pass with title to the land.
[2] 2. Defendant's Counterclaim. On this point the trial court said: "Mrs. Wood has a counterclaim for taxes [$21.82] that she paid on this land which he should have paid under the law. But she collected the government conservation payment [$30.00] which she was not entitled to, and which belonged to Mr. Wood, and that was more than the amount of the taxes she paid."
Under the circumstances we think the trial court was right in refusing to allow defendant's counterclaim.
The judgment is affirmed.
MR. CHIEF JUSTICE BURKE and MR. JUSTICE JACKSON concur. *598