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and pears, if hanging on the trees at the time of his death, also hedges and bushes, go to the heirs, and not to the executor or administrator; and this simply because they are part of the real estate, and not chattels.1 But it would be otherwise with severed timber, fallen fruit, materials piled for fuel, and the like; for this is personal property. similar distinction applies generally to vegetables.

A

Annual

§ 103. Emblements; Annual Crops fit for Harvest. crops which have been planted by the owner of the soil, if fit for harvest, may, out of favor to mutual intention, acquire the character and incidents of personal chattels, though in general they should first be severed.2 And there are cases which make crops the subject of sale as chattels, even before they are ripe and ready to be gathered. Such crops, in favor of a creditor, may, under like circumstances, be levied upon as personal property.4

§ 104. Doctrine of Emblements strictly so called. What we have said of chattels vegetable may prepare the reader to understand better the strict doctrine of emblements, which will occupy our attention for the remainder of this chapter. This doctrine, which concerns growing crops still unsevered, bestows upon certain real property, by legal construction, the character and incidents of chattels personal, by applying in effect a severance which would have taken place but for unforeseen contingencies beyond the control of a person who expected to sever, and to hold the severed property as his Here too, as it seems to us, the legal purpose is that of liberally and beneficially aiding the reasonable and the presumed intention of the parties concerned, as in the other

own.

1 Swinb. pt. 7, § 10, pl. 8; 1 Wms. Ex'rs, 668.

2 Evans v. Roberts, 5 B. & C. 829; Jones v. Flint, 10 A. & E. 753. See Davis v. McFarlane, 37 Cal. 634; Kingsley v. Holbrook, 45 N. H. 319.

8 Ib.; Sainsbury v. Matthews, 4 M. & W. 343; Craddock v. Riddlesburger, 2 Dana, 206. But see Emerson v. Heelis, 2 Taunt. 38. See Tripp v. Hasceig, 20 Mich. 154, which consid

ers the case of unsevered crops as affected by a conveyance of the premises.

4 Heard v. Fairbanks, 5 Met. 111; Stambaugh v. Yates, 2 Rawle, 161. Growing crops are not "personal chattels" under the English Bills of Sale Act, 17 & 18 Vict. c. 36. Brantom v. Griffits, 2 C. P. D. 212; s. c. 1 C.. P. D. 349.

instances already noticed. The rule is, that a tenant for life has, as also other tenants of estates of uncertain duration, the right of emblements or profits of the crop, "emblavence de bled," which he takes on the termination of his estate, or which, if he is dead, his executors or administrators take; partly, perhaps, "to compensate" (as they say) "for the labor and expense of tilling, manuring, and sowing the land."1 The doctrine of emblements is borrowed from the feudal law, whereby, if a tenant for life died between the first of September and last of February, the lord took the profits of the whole year with the reversion; while if he died between the first of March and the last of August, the heirs of the tenant received the whole.2 As the common law strongly encouraged husbandry, we may regard the right of emblements as founded upon such a policy (in connection, as we have intimated, with upholding the presumed mutual intent of parties) rather than the rule of a compensation, which, one readily sees, would not thus be measured with exactness.

The doctrine of emblements prevails both in England and the United States at this day. The principle is, that where a tenant sows and works upon the land, with the expectation of gathering the harvest, no sudden and unlooked-for termination of his estate, either by the act of God, or through the misconduct of his lessor, should deprive him or his representatives of the fruits of his labor.3 It follows then, that to bring a tenant of lands within this principle: first, he should have expended labor upon the crop; second, his estate should have terminated unexpectedly, and without fault on his part.

§ 105. Doctrine of Emblements; Labor upon Crop required. -As to the first point, we find that the law draws a distinction between such vegetable products as are the annual results of agricultural labor, and such as are not. Accordingly crops of corn, peas, beans, tares, hemp, flax, melons, potatoes, and the like, are enumerated as among the subjects of emble

11 Wms. Pers. Prop. 17, and 6th Eng. ed. 670; 4 Kent Com. 73, notes; 1 Washb. Real Prop. 101 et 110. seq.; 2 Bl. Com. 122; 1 Wms. Ex'rs,

2 Ib.

8 Ib.

ments, yielding an annual profit produced by labor; whilst timber, fruit-trees, grass, and clover, which do not repay within a single year the labor by which they are produced, are excluded from the operation of this rule. Such artificial grasses as are annually renewed seem to fall within the description of emblements. And, by way of exception to the general rule, hops are made the subject of emblements, because, though produced from permanent roots, they require yearly culture and manuring to produce at all; and upon the same principle other kinds of crops might also be excepted in these days of scientific farming. The general rule is, that emblements can only be claimed in respect of crops which ordinarily repay the labor by which they are produced within the year in which the labor is expended; though in extraordinary seasons they may be delayed beyond that period. And, of course, these must be crops which grow not spontaneously, but by the industry of man.1

To illustrate this principle somewhat further: If I plant a fruit-tree, neither the annual fruit nor the tree itself can be the subject of emblements. For the fruit is borne without my annual labor; and when I planted the tree, I did so presumably, not in contemplation of present profit, but for future enjoyment, that the labor once bestowed might benefit others if not myself.5 Nor can timber trees be grubbed up for the benefit of the party whose estate terminated; for the year's supply does not correspond with the year's industry. The case of trees planted by nurserymen with an express view to chattel sale may be mentioned as an exception, as we have already indicated." Grass is not sown every year, and as the improvement cannot be distinguished from the natural product, neither can I make this the subject of emble

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ments, although the supply may have been increased by my cultivation.1

Planting is an essential element in most claims of emblements. The crop must have been actually planted during the life of the tenant; and no degree of preparation of the ground will give to one the fruits of seed which another has planted after the determination of his tenancy.2 So the crop claimed must be the crop which was growing at the end of the term, and only that one; even though it does not sufficiently compensate for the industry bestowed, and another crop springs up afterwards. But the right to emblements does not require that the land be cultivated according to rules of good husbandry; for any loss by bad cultivation would be the tenant's own.1

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§ 106. Doctrine of Emblements; Unexpected Termination of Tenancy without Fault. -As to the second point: namely, that the tenant's estate should have terminated unexpectedly and without fault on his part. If a tenant were allowed to take the crops where he knew before planting that the estate would terminate before they were ripened, -the general rule being, that control of the incidents ceases with control of the freehold, or where he chose to terminate the estate, the law of emblements would be one of favor instead of fairness. But where an estate is suddenly brought to an end by the act of God, or through the misconduct of the lessor, the lessee or his legal representatives may rightfully claim emblements. Nor is suddenness and unexpectedness of termination applied in any such sense as to exclude the claim where the land was sowed when the tenant was in ill health and his early death seemed imminent." The executor or

1 Gilb. Ev. 215, 216; 1 Wms. Ex'rs, 672; Evarts v. Inglehart, 6 Gill & J. 188; Evans v. Hardy, 76 Ind. 527.

21 Washb. Real Prop. 103, and cases cited; Stewart v. Doughty, 9 Johns. 108; Price v. Pickett, 21 Ala. 741.

4 Bradley v. Bailey, 56 Conn. 374.

51 Washb. Real Prop. 103; 1 Wms. Ex'rs, 673; Debow v. Colfax, 5 Halst. 128; Chesley v. Welch, 37 Me. 106; Whitmarsh v. Cutting, 10 Johns. 360; Bouv. Dict. "Emble

3 Graves v. Weld, 5 B. & Ad. 105; ments; " 4 Kent Com. 73, 110. 2 Nev. & M. 725.

6 Bradley v. Bailey, 56 Conn. 374.

administrator of a tenant for life is entitled to emblements.1 And so would it be where one was virtually tenant at

another's will.2

To take illustrations. A woman, who is tenant during widowhood, marries. The tenancy is terminated by her own act, and she has no right to emblements. So, if a tenant abandons the premises, or voluntarily puts an end to the tenancy. And these principles apply in the case of a tenant at will, who, if wrongfully turned out by his landlord before harvest, but not where he abandons his tenancy, is entitled to emblements.5 A tenant for a term of years, or for a period certain, is not, under ordinary circumstances, entitled to emblements. Nor one who voluntarily surrenders his term.7 Nor a joint tenant as against the rights of a survivor. Nor a mere tenant at sufferance, nor any one who occupies the lands wrongfully.9

The right of emblements applies as between the executor or administrator of the person seised of the inheritance and the heir in some cases, and in others, between the executor or administrator of the tenant for life and the remainder-man or reversioner. When the occupier of the land, whether he be owner of the inheritance or of an estate for life, dies after sowing and before harvest time, his personal representatives take the profits of the crop or emblements. 10 This right

1 Ib.

2 Towne v. Bowers, 81 Mo. 491. 8 Hawkins v. Skegg, 10 Humph. 31; Debow v. Colfax, 5 Halst. 128.

41 Washb. Real Prop. 103, and cases cited; Whitmarsh v. Cutting, 10 Johns. 360.

51 Washb. Real Prop. 103; 5 Rep. 116; Chandler v. Thurston, 10 Pick. 205; 1 Wms. Ex'rs, 675.

6 Debow v. Colfax, 5 Halst. 128; Whitmarsh v. Cutting, 10 Johns. 360; Chesley v. Welch, 37 Me. 106; 1 Washb. Real Prop. 103; 48 Mo. App. But see § 108, post.

430.

7 Carney v. Mosher, 97 Mich. 554. 8 Owen, 102; Rowney's Case, 2 Vern. 323.

Doe v. Turner, 7 M. & W. 226. In case of ejectment, the question whether the person ejected held under a claim of title appears material. See McLean v. Bovee, 24 Wis. 295; Page v. Fowler, 39 Cal. 412; Rowell v. Klein, 44 Ind. 290. One who is let into possession under a parol contract to purchase is a tenant at will so far as relates to emblements; and, if ejected because the other party refuses to carry out the oral contract, he is entitled to his crops. Harris v. Frink, 49 N. Y. 24.

10 Swinb. pt. 7, § 10, pl. 8; Evans v. Inglehart, 6 G. & J. 173; Penhallow v. Dwight, 7 Mass. 34; Wadsworth v. Allcott, 6 N. Y. 64; Singleton

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