extends to tenants by the curtesy, for they are life-tenants.1 Before the statute of Merton, it was thought that a dowress could neither devise her growing corn, nor cause the crop she had sown to go to her executor or administrator, instead of the reversioner; this statute, however, places her on the same footing as to emblements with other life tenants.2 The rule extends to every case where the estate determines by act of God, or the act of the law. If an owner sows the land and then conveys it away, he passes the title to the crop, as well as the soil; and his executors and administrators have no concern in either. The same principle applies to the conveyance of a reversion subject to an existing particular estate. So, too, emblements pass by a devise of the land; partly because, being a grant, the devise must be taken most strongly against the grantor.5 Why should the devisee stand on a better footing than the heir? For, as against the heir at law, the emblements go to the executor. It is, after all, only a matter of presumption; and the presumption may be rebutted by words in the will that show an intent that the executor or some legatee shall have the emblements. Once more, if a tenant plants the crop, sells it as a growing crop, and then terminates the estate by his own act, the vendee cannot claim the crop as emblements, for the vendor cannot pass a title greater than his own.8 v. Singleton, 5 Dana, 92; Bradley v. Bailey, 56 Conn. 374. 11 Wms. Ex'rs, 679. 2 Stat. 20 Hen. III. c. 2; Co. 2d Inst. 80. See Haslett v. Glenn, 7 H. & J. 17. 31 Washb. Real Prop. 104; 1 Wms. Ex'rs, 674; Brantom v. Griffits, 2 C. P. D. 212; s. c. 1 C. P. D. 349. Foote v. Colvin, 3 Johns. 216; Burnside v. Weightman, 9 Watts, 46. 5 Spencer's Case, Winch, 51; Cooper v. Woolfitt, 2 Hurl. & N. 122; Dennett v. Hopkinson, 66 Me. 350. 6 Dennett v. Hopkinson, 66 Me. 350. A deed of land giving possession expressly at the grantor's death, gives the grantee the emblements when the grantor dies. Waugh v. Waugh, 84 Penn. St. 350. 71 Wms. Ex'rs, 674; West v. Moore, 8 East, 343; Co. Lit. 55 b, Hargrave, n. See cases cited in Cooper v. Woolfitt, supra; Rudge v. Winnall, 12 Beav. 357; Budd v. Hiler, 3 Dutch. 43; Shafner v. Shafner, 5 Sneed, 94; 119 Ind. 305. 8 Debow v. Colfax, 5 Halst. 128; 1 Washb. Real Prop. 104. Where a married woman died, leaving land which was worked by her surviving husband and minor children, her heirs at law, there being at the time no administrator ap It should also be noticed that the original lessee or tenant for life may pass his claim for emblements to his assignee or sub-lessee; save where he is restricted by the terms of his lease from assigning or underletting his term. Indeed, in some cases the assignee or sub-lessee may claim emblements where the original tenant could not have done so. As, for instance, if a tenant during widowhood should underlet and then marry, she would forfeit by marriage all right to emblements; but the law does not place the sub-lessee in the same predicament, because it was not his fault that she did so. The under-lessee or assignee, it is to be remembered, cannot in general be prejudiced by the acts of his own lessee.2 § 107. Doctrine of Emblements; Right of taking, how exercised, etc.—When there is a right to emblements, the law gives a free entry, egress, and regress, as much as is necessary, in order to cut and carry them away. The extent of this right is stated by writers on real property to be this: the tenant or his representative may enter upon the land, cultivate the crop if a growing one, and cut and harvest it when fit; and if interfered with, in the reasonable exercise of this right, by the landlord or reversioner, or if the crop be injured by him, he may have an action for the same. But the landlord or reversioner meantime retains exclusive possession of the premises for all other purposes, and the tenant's right of ingress and egress is strictly limited to the exigencies of the situation. Indeed, some writers suggest (though, as it seems to us, without good reason) that possibly the tenant or his executors might be forced to pay rent of some sort until the crop was gathered.4 § 108. 'Away-going Crops" of Tenants for Years. pointed, it was held that the crops should go to the husband, subject to an offsetting charge for rent. Gibson v. Carraker, 82 Ga. 46. 1 Lessee of a life-tenant who died was allowed emblements where he had sowed. Bradley v. Bailey, 56 Conn. 374. 2 2 Bl. Com. 124; 1 Washb. Real Prop. 104, and cases cited; Bulwer - We v. Bulwer, 2 B. & Ald. 470; Bevans v. Briscoe, 4 Har. & J. 139. See supra, § 36. 81 Washb. Real Prop. 105; Co. Lit. 56 a; 1 Wms. Ex'rs, 6th ed. 679. See Hayling v. Okey, 8 Ex. 531; 81 Mo. 491. 4 Plowd. Quæries, 239; 1 Wms. Ex'rs, ib.; 1 Washb. Real Prop. 106. And see Smith Landl. and Ten. 256. have thus reviewed the common-law doctrine of emblements, whereby some chattels vegetable, while yet unsevered and unripe, are treated as, in a measure, personal and not real property. We have seen that life-tenants and tenants in general for any uncertain period come within the benefits of this doctrine. But, following the authorities, we have spoken rather cautiously of tenants for terms of years whose estates happen to terminate unexpectedly; and with reason, since such an estate is of itself one for a period certain. A tenant for a term of years if he should so long live, may be deemed one for an uncertain period; so that if he die before the lease expires, his personal representatives are entitled to emblements. And, under any lease, the landlord is liable for all damages which ensue from his wrongful act in turning out the tenant. But the covenants of a lease may be examined in order to ascertain the mutual intent; and where a tenant stipulates that, in case of his bankruptcy or insolvency, the landlord may re-enter, and the landlord accordingly does so, it is held that the tenant cannot recover emblements; for he himself, and not the landlord, was at fault. And so may it be even as against the assignee of a lease which expressly makes the right to such crops depend upon the performance of a condition which has not been fulfilled.3 Custom, however, often regulates the rights of landlord and tenant, under a term for years, in the matter of emblements; thus establishing a rule for chattels vegetable, similar to what we have already noticed as being the essence of the law of heirlooms. And upon custom is founded the right of the outgoing tenant of a term for years to what is called, in the English courts, his "away-going crop."4 1 Rolle Abr. 727, pl. 2; Co. Lit. 56 a. who sows ought to reap, and it is for the benefit and encouragement of 2 Davis v. Eyton, 7 Bing. 154; agriculture. It is, indeed, against Smith Landl. and Ten. 252. the general rule of law concerning emblements, which are not allowed to tenants who know when their term is to cease; because it is held to be their fault or folly to have sown, when they knew their interest would 129 While, too, in this country, the tenant under a lease which is to expire at a fixed time is not, as a rule, entitled to emblements, statutory provisions or local customs are sometimes found to the contrary. In Pennsylvania, New Jersey, and Delaware, for instance, the local custom is declared to prevail of giving the tenant this "away-going crop ; a custom which seems to be somewhat restricted, however, in its operation.1 A recent statute in England affects the operation of the doctrine of emblements in that country, taking the right away in certain cases, and allowing the tenant, by way of equivalent, to hold until the expiration of the current year of his term.2 Claimants. § 109. Emblements, etc., as concerns Mortgagees and Lien But the right of the tenant, whether for a term of years or a period uncertain, to "away-going crops," or to emblements, is not so extensive where the lands have been mortgaged. And it has been held in numerous instances by our courts that if a mortgagee forecloses his mortgage, whatever crops are then growing upon the mortgaged premises, if planted after the mortgage is made, become the mortgagee's, whether planted by the mortgagor or by his tenant, free from any claim by such tenant. But a foreclosure after the crops are severed carries no interest to the mortgagee or purchaser. And the right to growing crops is so broad that expire before they could reap. But the custom of a particular place may rectify what otherwise would be imprudence or folly. The lease being altered by deed does not vary the case. The custom does not alter or contradict the agreement in the lease; it only superadds a right which is consequential to the taking." Wigglesworth v. Dallison, 1 Dougl. 201. See ib., 1 Smith's Lead. Cas. 670. 1 Demi v. Bossler, 1 Penn. 224; Howell v. Schenck, 4 Zabr. 89; Templeman v. Biddle, 1 Harring. 522; Clark v. Banks, 6 Houst. 584; 1 Washb. Real Prop. 106; Smith Landl. and Ten. 258, notes by Maude and Morris; Taylor Landl. and Ten. § 538. Abandonment of the crop and violation of the lease preclude the tenant's right. Fry v. Ford, 38 Ark. 246. 2 14 & 15 Vict. c. 25, § 1 (1851); Wms. Real Prop. 6th ed. 27. 81 Washb. Real Prop. 106, and cases cited; Lane v. King, 8 Wend. 584; Gillett v. Balcom, 6 Barb. 370; Jones v. Thomas, 8 Black, 428; Howell v. Schenck, 4 Zabr. 89. 4 Buckout v. Swift, 27 Cal. 438; Codrington v. Johnstone, 1 Beav. 520; 50 Mo. App. 136. Even a matured crop not severed has in special instances been protected to judgment liens are not permitted to interfere with a tenant's emblements; for where the tenant has hired land subject to such a lien, and planted crops upon them before a sale of the premises is made, he may claim them against a purchaser of the land under the sheriff's sale. It is held, also, that the mortgagor's prior sale of the growing crop on his farm gives to the purchaser a priority over the mortgagee, to whom he afterwards surrenders the farm before a harvest.2 § 110. Emblements in the Civil Law. - Chancellor Kent says that the doctrine of emblements, being founded on principles so very reasonable, must have existed at the Roman law in tenancies depending on uncertainty. And he mentions, in this same connection, a question once proposed by Marcellus, whether a tenant for the term of five years. could reap the fruits of his labor which arose after the extinguishment of the lease. This question was correctly answered in the negative, inasmuch as the tenant must have foreseen the termination of the lease. While indeed, as we may add, a farmer, at the civil law, whose lease had been interrupted by some event which he ought to have foreseen, was treated as a person willing to run the hazard of all losses thereby suffered, the rule, nevertheless, prevailed, that where he was molested by or through the proprietor, the latter should make good all damages sustained thereby, as well as the profits which might have accrued had the lease continued unbroken. The law of Scotland recognizes the doctrine of emblements, and, like the common law, restricts the tenant's right to those annual fruits which require yearly seed and industry, accounting them to be movable even before separation, from the moment they are sown or planted. And the mortgagor as against the pur- 66; 1 Washb. Real Prop. 106. see Jewett v. Keenholts, 16 Barb. 193. 1 Bittinger v. Baker, 29 Penn. St. 4 Dig. 19, 2, 9, cited by Kent, ib. 51 Dom. Civ. Law, §§ 515, 517. 62 Burge Col. & For. Laws, 9. 131 |