of his property, or being indebted to him, in the county, and giving notice by publication of the proceeding; and such was the proceeding in this case. Conceding, then, that the transfer of the mortgagor's interest in the goods by bill of sale to Root & McBride to secure a debt due to them was good as against creditors, which may be doubtful under section 4151, Rev. Stat., as it was not recorded as therein required, still, it was subsequent in time to the liens created by the proceedings in attachment, and hence did not entitle them to recover the property in replevin against Davis & Bros., who were bound by those proceedings to account to Luce & Co. and Shaw & Co. for its value over and above their own claim, the claim of the plaintiff being postponed to what might remain after payment of these claims and that of the defendant. in Lucas county gave to Luce & Co., as well as to Shaw & Co., a lien upon the property covered by the mortgage to Davis & Bros., or on any indebtedness of the latter to the mort gagors, Stewart & Co,-the property being at the time of the service in Crawford county, the residence of the latter. We think it did. At the time of the service of process on the garnishees, they had, as mortgagees, taken possession of the property under the provisions of the mortgage, so that, irrespective of its phys ical location, they were the owners of it, subject only to a liability to account to the mortgagor for the surplus of its value after satisfying their claim. In other words, their relation had changed from that of creditor to that of debtor of the mortgagor for whatever this surplus might be. Robinson v. Fitch, 26 Ohio St. 659, 662; Carty v. Fenstemaker, 14 Ohio St. 457, 461; Lindemann v. Ingham,36 Ohio St. 1, 9; Morgan But it is further claimed that the attachments v. Spangler, 20 Ohio St. 38; Kingsbury v. were void on the ground of irregularities in Phelps, Wright (Ohio) 371; 2 Story, Eq. Jur. § the proceedings had before the justice. In so 1031. And this credit of the mortgagors was lia- far as this claim is based on the ground that ble to be attached, and was attached by the ser- there was no physical seizure of the property vice of the process of attachment upon the debt- by the constable, it has been answered by what ors, Davis & Bros., and made them liable to the has been already said. The thing attached in attaching creditors for whatever might be found this case was not tangible, but intangible, due from them on the value of the property af property,-a chose in action,-which, under ter satisfying the amount of their own claim. our law, may be attached by process of garIt is claimed, however, that, without a phys-nishment served on the debtor, where the deical seizure of the property in Lucas county, the magistrate had no jurisdiction to order the payment of the amount due from the gar nishees into court, as no personal service was The other objections are, at most, based upon obtained upon the defendants in the action. such irregularities as can only be taken advanA number of cases are cited in support of this tage of by a proceeding in error, and are not proposition. But they are all cases where the available in a collateral proceeding, as the jusdefendant was a nonresident of the state in tice had jurisdiction of the subject of the acwhich the action was commenced. It may be tion, and power to issue a writ of attachment conceded that the credits of a nonresident upon the affidavit that was filed therefor. debtor, without personal service upon him, can-The rules," says Longworth, J., in Scioto Valnot be attached, in this state, by simply serving the process of garnishment upon his debtor residing within the jurisdiction of the court is suing the process. That would be to give to the laws an extraterritorial effect. In Baltimore & O. R. Co. v. May, 25 Ohio St. 347, it was held that the indebtedness of the company to a person residing in this state could be at tached in the courts of a sister state without personal service, but this seems opposed to the recent decision of the Supreme Court of the United States in Cole v. Cunningham, 133 U. S. 107, 33 L. ed. 538; Reno, Nonresidents, § 140. A number of the state courts take the same view. Id. § 216. fendant is a nonresident of the county in which the suit is commenced, service being made on him by publication. ley R. Co. v. Cronin, 38 Ohio St. 122, "which govern pleading in courts of record at common law, and under the code of civil procedure, have never been strictly applied in proceedings before justices of the peace. From the earliest days, a very liberal practice has obtained, in this state, in reviewing proceedings had before these officers, when the question of their jurisdiction is not involved." Among the errors appearing, as claimed, upon the transcript of the justice, offered in evidence of the proceedings had before him, is its omission to show that he found, from the answer of the garnishees, that they had property in their possession belonging to the defendants, or that they But as between citizens of the state, subject were indebted to them. The transcript does, to its laws, the case is wholly different. While however, show that, on the day fixed for a the situs of a credit is generally regarded as hearing, by the publication of notice, the justhat of the creditor, it would be quite as rea- tice, after rendering judgment for the plainsonable to treat it as that of the debtor, for the tiffs, made an order on the garuishees "to dedebtor is the person from whom the money is liver the property of the defendants in their derived that makes the credit available as a possession to the court, and to pay the money thing of value; so that there is nothing in the due from them to the defendants into court. nature of things forbidding the place of the This, we think, was sufficient. If a finding of debtor being regarded as the situs of a credit. the kind were necessary, the presumption from And hence it is competent for the legislature the order is that it was made, and an omission to enact, as has been done in this state, that to enter such finding upon the docket cannot the property and effects, of every kind, of a be taken advantage of in a collateral proceedresident of one county, may be attached by his ing. The garnishees were served; and the creditor in another, on the ground of his non-order of attachment binds the property atresidence therein, by serving the process of tached from the time of service, and the gargarnishment upon a person having possession nishee stands liable to the plaintiff for all prop erty, moneys, and credits in his hands, or due from him to the defendant, from the time he is served with the notice." White, J., in Carty v. Fenstemaker, supra. See also National Bank of New London v. Lake Shore & M. S. R. Co. 21 Ohio St. 221, 229. Exception was also taken to the admission in evidence of papers in the case, not entered upon the transcript of the justice. These simply showed that the statute regulating the proceeding had been complied with. Their entry upon the docket is not required, nor Dickman and Spear, JJ., dissent V. PENNSYLVANIA SUPREME COURT. Celia MCMULLEN, Appt., CARNEGIE BROS. & CO., Limited. (158 Pa. 518.) time that a jury could be permitted to find that, in the ordinary course of affairs, they should have noticed it. Plaintiff's case then depends upon the existence of a duty on the part of defendants to ascertain by inspection that cars delivered to them by the railroad company for the purpose of being unloaded dition, before permitting its employés to or loaded, or both, are in good and safe con The rule applicable to railroad companies, requiring them to inspect cars of other companies used for transporting freight, before permitting their employés to ban-handle them for the purposes for which they dle them, is not applicable to companies or persons on whose sidings cars are delivered for the purpose of permitting them to load or unload freight. (November 14, 1893.) PPEAL by plaintiff from a judgment of A The facts sufficiently appear in the opinion of MCCLUNG, J., in the court below in refusing to take off the compulsory nonsuit which had been previously entered, as follows: "There is no direct evidence in this case of actual notice to the defendants of the defective condition of the brake staff which probably caused the death of the plaintiff's husband. Nor does it appear that the car was in their possession for such length of NOTE.-The above case, though decided without discussion, seems worth reporting in this series as presenting a point which is apparently new. : 23 L. R. A are so delivered. The cars used by a railroad company for the purpose of transporting freight are appliances, as to the condition of which the company owes a duty to its employés working upon them, which cannot be filled without proper inspection. This, doubtless, applies as to cars borrowed or hired by the railroad company from another company. It does not, however, apply to companies or persons on whose sidings loaded ting the owner of the siding to unload the cars are delivered for the purpose of permitfreight. It follows that the nonsuit in this case was properly granted, and the motion to take it off must be refused." Messrs. John B. Chapman and M. A. Per Curiam: We are satisfied, from an examination of the testimony in this case, that there was no error in refusing to take off the judgment of nonsuit; and, for the reasons given in the opinion of the learned judge of the court below, the judgment should be affirmed. MICHIGAN SUPREME COURT. John W. DICKEY et al. V. George WALDO, Piff. in Err. (97 Mich. 255.) 1. A contract by the owner of a homestead under which a third person is to set out NOTE.-Sale or mortgage of future crops. L. How assignable. a. Sales. b. Statute of frauds. c. Mortgages. d. Upon sale of the land. II. General doctrine. III. Necessity and effect of ratification. IV. Necessity and effect of possession. V. Potential interests. VI. Equitable doctrine. VII. Description. a. General rules. b. Sufficient. c. Insufficient. VIII. Parol evidence to identify. IX. Notice. a. General. b. Constructive. X. Necessity and effect of recording. XI. To what crop or part of crop it extends. XII. Title of a mortgagee. XIII. Effect of. a. As against creditors. b. As against purchasers. c. As between husband and wife. d. Judgment against. XIV. Severance of the property. XV. Application of proceeds. XVI. To secure crop advances. XVII. Crops raised upon shares. XVIII. Upon whom binding. XIX. Landlord and tenant. XX. Conversion. XXI. Special state doctrines and laws. I. How assignable. a. Sales. In Coke upon Littleton, 4 b. it is stated that if a man has twenty acres of land and by deed grant to another and to his heirs vestura terræ and maketh livery of seisin secundum formam charta, the land itself shall not pass because he hath a particular right in the land and thereby he shall not have the houses, timber, trees, mines and other real things parcel of the inheritance, but he shall have the vesture of the land, that is the corn, grass, underwood, sweepage and the like, and he shall have an action of trespass quare clausum fregit. This legal writer also states: "The same time if a man grant herbagium terræ, he hath a like particular right in the land and shall have an action quare clausum fregit, but by grant thereof and livery made, the soil shall not pass as aforesaid. If a man Jet to B. the herbage of his woods, and after grant all his lands in the tenure, possession, or occupation of B., the woods shall pass, for B. hath a particular possession and occupation which is sufficient in this case." The law makes a pointed distinction between those profits which are the spontaneous products of the earth or its permanent fruits, and corn and other growth of the earth which are produced annually by labor and industry, and hence are called fructus industriales, the latter being regarded for A sale of such crops is good inter partes and as against third parties, even without a change of possession. Bellows v. Wells, 36 Vt.-599. Crops produced by annual cultivation, growing or standing fructus industriales, ready for harvest, are personal estate, and may be transferred as chattels. Willis v. Moore, 59 Tex. 628, 46 Am. Rep. 284; Silberberg v. Trilling, 82 Tex. 523; Cayce v. Stovall, 50 Miss. 396; Erskine v. Plummer, 7 Me. 447, 22 Am. Dec. 216. They are no part of the realty. Silberberg v. Trilling, supra; Delaney v. Root, 99 Mass. 548, 97 Am. Dec. 53; Parsons v. Smith, 5 Allen, 578; Giles v. Simonds, 15 Gray, 441, 77 Am. Dec. 373. The law is well settled as to sales. Crine v. Tifts, 65 Ga. 644. Grass in a condition to be cut was held to be the subject of a parol sale. Cutler v. Pope, 13 Me. 377. And a parol contract for the sale of such a crop passes a title valid as against the vendor and all subsequent claimants. Westbrook v. Eager, 16 N. J. L. 81; Green v. Armstrong, 1 Denio, 556; Shepard v. Philbrick, 2 Denio, 175; Harris v. Frink, 49 N. Y. 24, 10 Am. Rep. 318. So an interest in personal chattels may be created without a deed or conveyance in writing. Green v. Armstrong, 1 Denio, 550. A license to do a particular thing upon another's land is valid without deed or writing, not transferring an interest in land, and if for value is not countermandable. Claflin v. Carpenter, 4 Met. 580, 38 Am. Dec. 381: Taylor v. Waters, 7 Taunt. 374, 2 Marsh. 551; Liggins v. Inge, 7 Bing. 682, 5 Moore & P. 712; Mumford v. Whitney, 15 Wend. 380, 30 Am. Dec. 60; Whitmarsh v. Walker, 1 Met. 313; Woodbury v. Parshley, 7 N. H. 237, 26 Am. Dec. 739. In Lewis v. McNatt, 65 N. C. 65, a crop of turpentine was held to be fructus industriales, not being a spontaneous product but produced by labor and cultivation. Grass owned by one not the owner of the freehold is personal estate and salable as such and may be mortgaged. Smith v. Jenks, 1 Denio, 580. A grant of crops to be thereafter grown by the owner upon his land is valid, and the title thereto passes as soon as they come into existence. Nestell v. Hewitt, 19 Abb. N. C. 287. In Stambaugh v. Yeates, 2 Rawle, 161, the court held that grain growing was so far personal property that it could be sold either privately by the owner, or by judicial process against him, and that such sale was an implied severance, and the grain did not pass by a sale of the land. Where under a parol contract for purchase, the purchaser was let into possession and sowed a crop of oats with the consent of the vendor, and subsequently refused to perform the contract and ejected the plaintiff, it was held that the plaintiff was a tenant at will entitled to the crop. Harris v. Frink, 49 N. Y. 24, 10 Am. Rep. 318. Where the vendee of land entered and sowed See also 32 L. R. A. 811; 43 L. R. A. 524. plant and cultivate peach trees upon the land of another for a term of ten years and to receive half of the proceeds during any two years of such term which he may select, is not invalid in respect to the interest given in such crops as a mortgage of a thing having no potential existence, since the contract is executed by the setting out and delivery of title to the crops under a parol contract for the purchase of the land with the consent of the vendor, the court held that the invalidity of the contract had no effect upon the purchaser's title to the crops which remained in him as personal chattels. Ibid. b. Statute of frauds. In Bernal v. Hovious, 17 Cal. 541, 79 Am. Dec. 147, the fifteenth section of the Statute of Frauds which declares that "every sale made by a vendor of goods and chattels in his possession or under his control, and every assignment of goods and chattels, unless the same be followed by an actual or continued change of possession of the things sold or assigned, shall be conclusive evidence of fraud as against the creditors of the vendor or the creditors of the persons making such assignment, or subsequent purchasers in good faith,"-was held not to apply to a case of growing crops, they not being goods and chattels within its meaning. Bours v. Webster, 6 Cal. 661; and Visher v. Webster, 13 Cal. 58, to the same effect. Although growing crops are chattels and will pass by a verbal sale, yet they are not susceptible of manual delivery until harvested and therefore are not until harvested "in the possession or under control of the vendor within the meaning of the statute." Davis v. McFarlane, 37 Cal. 634, 99 Am. Dec. 340; Bours v. Webster and Visher v. Webster, supra; Pacheco v. Hunsacker, 14 Cal. 120; Bernal v. Horious, supra; Robbins v. Oldham, 1 Duv. 28, Such a construction of the statute would make it an absolute interdiction upon the sale of growing crops, unless the vendor were willing to abandon the possession to the vendee at the same time. Davis v. McFarlane, supra. | trees and the crops are the subject of sale or mortgage in the same manner as crops to be raised from seeds already planted. 3. A contract by which one person is to set out and cultivate for ten years peach trees upon the land of another and to have half of the crops for any two years of such term which he may select, makes him a tenant in bles, or other crops raised periodically by cultivation, and it is quite as immaterial whether the produce is fully grown or in the process of growing at the time of making the contract. Ibid. The circumstances that the produce purchased may, or probably, or certainly will, derive nourishmert from the soil, between the time of the contract and the time of the delivery, is not conclusive as to the operation of the statute. Ibid. Such transactions take their character of realty or personalty from the principal subject-matter of the contract and the interest of the parties, and therefore a sale of any growing produce of the earth in actual existence at the time of the contract, whether it be in a state of maturity or not, is not to be considered a sale of an interest in or concerning land. Ibid. In Purner v. Piercy, supra, it was held to be a perversion of the object of the statute of frauds, to hold as invalid a sale, in other respects legal, of a growing crop of peaches without any intent of the parties to sell or purchase the soil, but conferring a mere license expressed or implied to the purchaser to go upon the land to gather the fruit and remove the same. Where timber or other produce of the land, or any other thing annexed to the freehold, is specifically sold, whether it be severed from the soil by the vendor or to be taken by the vendee under a special license to enter for that purpose, it is still a sale of goods only and not within the statute. Purner v. Piercy, supra. A sale of any growing produce of the earth in actual existence at the time of the contract whether it be in a state of maturity or not, is not to be considered a sale of an interest in or concern In Bostwick v. Leach, 3 Day, 476, a sale of property which would pass by a deed of land as such, without any other description, which is to be separated from the land, is not within the statute of frauds, where the subject-matter is capable of being separated. There is nothing in Ibid. the vegetable or fruiting land. which has an interest in or concerning land when severed from the soil, whether trees, grass, or other spontaneous growth (prima vestura), or grain, vegetables, or any kind of crops (fructus industriales) the product of periodical planting and culture, they are alike, mere chattels, and the severance may be in fact as when they are cut and removed from the ground, or in law, as when they are growing, the owner in fee of the land by a valid conveyance sells them to another person or where he sells the land reserving them by expressed provisions. Purner v. Piercy, 40 Md. 212, 17 Am. Rep. 691. As a general rule if the products of the earth are sold specifically, and by the terms of the contract to be separately delivered as chattels, the sale is not affected by the fourth section of the Statute of Frauds as amounting to a sale of an interest in land. Ibid. i If the contract when executed is to convey to the purchaser a mere chattel, though it may be in the interim a part of the realty, it is not affected by the statute. Ibid. A contract for the sale of growing crops raised by the industry of man and the cultivation of the earth is not within the statute. Bloom v. Welsh, 27 N. J. L. 177; Green v. Armstrong, 1 Denio, 550; Davis v. McFarlane, 37 Cal. 634, 99 Am. Dec. 340; Flynt v. Conrad, 61 N. C. 190, 93 Am. Dec. 588; Brittain v. McKay, 23 N. C. 265, 35 Am. Dec. 738; Walton v. Jordan, 65 N. C. 172; Bond v. Coke, 71 N. C. 100; Cook v. Steel, 42 Tex. 53. In Bank of Lansingburgh v. Crary, 1 Barb. 542, the court waived the consideration of the question, whether or not a valid mortgage upon the produce of land not in actual existence at the time could be made to hold that a mortgage of growing trees, fruit, and grass must be in writing within the statute. In McIlvaine v. Harris, 20 Mo. 457, 64 Am. Dec. 196, If, however, the contract is in the interim to con- it was held that growing wheat was an interest in fer upon the purchaser an exclusive right to the land and a contract concerning it within the statland for a time for the purpose of making a profitute of frauds, and must be in writing, and that paof the growing surface, it is affected by the statute rol evidence of the sale of the wheat was inadmis and must be in writing, although the purchaser is at the last to take from the land only a chattel. Ibid. When such is the character of the transaction, it matters not whether the product be trees, grass, and other spontaneous growth, or grain, vegeta sible. c. Mortgages. A conveyance which simply secures an antecedent debt is effective only as a mortgage. Hamilton v. Maas, 77 Ala. 283. common with the owner of the land of the ages for the alleged conversion of certain peaches for the years which he may select. (October 27, 1893.) ERROR to the Circuit Court for Allegan County to review a judgment in favor of plaintiffs in an action brought to recover dam Under the Georgia Code, § 1955, no particular form is necessary to make a mortgage. Stephens v. Tucker, 55 Ga. 543. The mortgage may be so drawn as to cover afteracquired property, if in existence at the time the mortgage was executed. Hughes v. Wheeler, 68 Iowa. 641. peaches which had been grown on defendant's land, but which plaintiff claimed under the terms of a certain contract. Affirmed. The contract which was alleged to give plaintiffs their rights was as follows: "Articles of agreement, made this 21st day A deed absolute upon its face, without any reservation whatever in respect to a then growing crop, will pass the whole of the grantor's interest both in the crop and in the land upon which it is grown. Gibbous v. Dillingham, 10 Ark. 9, 50 Am. Dec. 233. Where the title to growing crops is not reserved, A valid mortgage of personalty may be made by they pass by a transfer of the land, and a chattel parol as under the common law, in the absence of mortgage thereof by the grantor in possession statutory requirements and a contract and convey-passes no title as against one claiming under his ance of personalty may be made without writing. grantee. Coman v. Thompson, 47 Mich, 22, 41 Am. Rep. 706. Morrow v. Turney, 36 Ala. 131, 136. This principle was distinctly recognized in May v. Eastin, 2 Port. (Ala.) 422. Grain not reserved passes by a conveyance of the land, and the fact that the vendor exercises And in Deshazo v. Lewis, 5 Stew. & P. (Ala.) 94; some new acts showing an apparent ownership Thrash v. Bennett, 57 Ala. 156. without objection, is not sufficient to show a reserEven of a crop afterwards to be planted. Stearns vation of the crops. Wilkins v. Vashbinder, 7 Watts, 378. v. Gafford, 56 Ala. 544. In Stewart v. Fry, 3 Ala. 573, it was held that the profits arising out of the use of a personal chattel might be made the subject of a mortgage. Such a mortgage is valid at common law, however immature the crop may be. Booker v. Jones, 55 Ala. 266. In Coster v. Bank of Georgia, 24 Ala. 49, the court went still further holding that a parol agreement to give a mortgage, money being advanced thereon, had the effect of a mortgage upon an estate consisting both of realty and personalty, the question of the statute of frauds not being noticed. In Brooks v. Ruff, 37 Ala. 371, the court held such a mortgage good inter partes. There must, however, be a debt, legal liability, or obligation actually existing or at the time proposed to be incurred, and afterwards actually incurred. Stearns v. Gafford, supra. Where the liability on a note as surety, for which a mortgage of personal property had been given by way of indemnity, was extinguished and a new note given with a different surety, the court held that a verbal agreement between the mortgagor, mortgagee, and the new surety made upon the cancellation and substitution of such notes, providing that the mortgage should stand as security, created a valid mortgage inter partes. Brooks v. Ruff, supra. A growing crop laid by before maturity was held to pass on a sale of the land. Pitts v. Hendrix, 6 Ga. 452. In Backenstoss v. Stahler, 33 Pa. 251, 75 Am. Dec. 592, it was held as settled law in that commonwealth, that growing crops were personal property. subject, however, to be parted with and as appurtenant to the realty in case of conveyance, unless severed by reservation or expectation. Bear v. Bitzer, 16 Pa. 178, 55 Am. Dec. 490, and Wilkins v. Vashbinder, 7 Watts, 379, to the same effect. A crop of grain was held not to pass by a conveyance of the land, in Smith v. Johnston, 1 Penr. & W. 471, 21 Am. Dec. 404, but this decision would seem to be overruled by the later cases of Burnside v. Weightman, 9 Watts, 47, and Wilkins v. Vashbinder, supra. After the crop has matured and been severed from the soil, it is personal estate, but while growing and not severed, unless expressly reserved, it will pass by a conveyance of the land. Creel v. Kirkham, 47 Ill. 344. Where upon a contract for the sale of land, a crop of wheat was, as between the parties, specially reserved by the vendor, it was held that such crop passed by the conveyance of the land, the contract being executed upon the execution of the deed which was sole evidence, the prior contract having merged therein. Turner v. Cool, supra. interest in the crop was intended. Gibbons v. Dillingham, supra. A verbal mortgage for advances and supplies And in such a case parol evidence is not admissinecessary to make a crop prior to the passing of section 1731 of the Alabama Code of 1886 (Acts 1884-ble to prove that the reservation of the grantor's 85, p. 931, was held to be good as a mortgage on the property of that one of the mortgagors entering into such an agreement, each mortgagor having a right severally to bind his own property by enlarging the legal operation of the security, the above section of the code prohibiting mortgages by parol not bearing upon the case. Hill v. Nelms, 86 Ala. 442. d. Upon sale of the land. In Wilkinson v. Ketler, 69 Ala. 435, the court held a crop was considered as growing from the time the seed was sown, as it then became part of the land and passed by a sale thereof. Growing crops pass by a sale of the land without any reserve. Crews v. Pendleton, 1 Leigh, 297, 19 Am. Dec. 750. As between the vendor and vendee, the growing crop is part of the realty, and as a general rule, the cale and conveyance of the land by its owner car ries the property in the crop to the purchaser. Turner v. Cool, 23 Ind. 56, 85 Am. Dec. 449. Parol evidence, however, was admitted in Flynt v. Conrad, 61 N. C. 190, 93 Am. Dec. 588, to prove that such crops did not pass by a conveyance of the land. In that case it was said that the deed did not purport to set out the agreement between the parties. Such evidence is admissible to prove that the possession remains in the grantor. Bond v. Coke, 71 N. C. 100. It was held admissible to prove a reservation of rrowing crops on a sale of realty. Baekenstoss v. Stahler, 33 Pa. 251, 75 Am. Dec. 592. Such reservation need not be by deed or in writing, for being goods and chattels, they may be con eyed by verbal contract. Hamblet v. Bliss, 55 Vt. 535. If reserved by parol, they will not pass as part of the realty under an orphan's court sale. Backenstoss v. Stahler, supra. |