
    WESTBROOK AND AL. v. EAGER.
    A purchaser by parol, of a growing crop of grain, acquires a good title thereto, not only against the seller, but against all others, subsequently claiming under him, whether by deed or otherwise.
    Growing grain, and other annual fruits of annual labor, are mere chattels, passing by parol; are assets of personal estate, and subject to execution against goods and chattels.
    A Postea without a judgment thereupon, cannot he given in evidence.
    This was an action of trover, to recover the value of a crop of rye, sown by one Davis; and by him sold by parol, while growing, to Eager. Subsequently and while the grain was still growing, Davis sold the land on which the grain stood, to West-brook, who gathered the grain, and afterwards appropriated it to his own use.
    
      J. W. Miller for plaintiff in Certiorari.
    
    
      Haines for defendant.
    The following is the state of the case.
    Wilhelmus Westbrook
    Abraham Westbrook and
    Peter Vannoy — appellants
    and
    James Eager appellee.
    Sussex Pleas.
    On appeal from the judgment of Matthias H. Ogden Esq. justice.
    This appeal at the August Term, 1836, of said Court of Common Pleas, being called on in its order; a jury was empannelled1 and sworn to try the cause. The plaintiff, J. Eager, by his Counsel, opened the cause and read the declaration, pro ut the same. Whereupon the defendants by their counsel, produced before the court, the record of a former suit, in an action of trespass brought by the said J. Eager, against the said Wilhelmus Westbrook, in the Supreme Court of this Slate, for breaking and entering a certain close, and taking and carrying away the said Rye, for which, the present suit was brought; which record was a transcript of the pleadings in the said cause, with the verdict of a jury, in favor of the defendant, W. Westbrook, and the Postea thereto, signed by the Chief Justice of the Supreme Court, at the Circuit Court held at Newton, in and for said county of Sussex, at the Term of May, 1835, pro ut the same; and thereupon moved the said Court of Common Pleas, to non-suit the plaintiff, or to dismiss his said suit. It was agreed that it was the same grain that was sought to be recovered in both suits. The court after argument overruled the said transcript and Postea, and refused to non-suit the plaintiff, or dismiss his said suit.
    The plaintiff then offered in evidence, a written paper purporting to be a bill of sale, by one Thomas Davis to the said J. Eager, of the rye in question pro ut the same, and called U. C. Hagerty, Esq. to prove the hand writing of said Davis, to said paper. Which evidence was objected to by the defendant’s counsel. And it was insisted by the defendant’s counsel, that he, Davis, was a competent witness to prove the contract and sale of said rye, and the time when it was done; and that a statement in his hand-writing, was not the best nor legal evidence to affect the rights of a third person; but the court, after argument, overruled the objection, and ordered the paper to be read after proof by Mr. Hagerty; that the signature to it, was the hand writing of said Thomas Davis.
    It is agreed that the lot of land on which the grain grew, was called the Orry Lot, and that at the time when the grain was sown, the land belonged to said Thomas Davis’ wife; that Davis was in possession of it, and sowed the grain, the fall before if was harvested. It was proved on the trial, and is agreed that Wilhelmus Westbrook by himself and hired hands, of whom the other two defendants were a part, cut and gathered the rye, at harvest time, against the consent and permission of the plaintiff, who then also claimed it by virtue of his said bill of sale, and forbid the defendant from taking it. There was something upwards of seventy bushels of rye gathered from the lot, by West-brook.
    It was proved by one witness Soverine L. Westbrook, that he had seen Eager before harvest, go up several times towards the field where the grain was growing, and believed that he occasionally fixed up the fence. This witness also said, that he heard a conversation between Eager and Westbrook about the grain, and Eager said to Westbrook, “ there ought not to have been any trouble about this, for you know that I bought the grain of Davis,” and Westbrook replied and said, “ I know you did, but I asked Davis and he denied it.”
    It was also proved by Joseph Vanauk that he heard Eager say about this time, that Westbrook had bought the land of Davis and his wife; but that he had bought the grain growing on the land, of Davis, before, Westbrook bought the land. The plaintiff also proved, by one Samuel Cortright, that in the month of June 1834, he had a conversation with Wilhelmus Westbrook, who said, “ that Eager had bought Davis’ grain, and had obtained a large judgment against him, and he did not know what more he wanted.” The witness Joseph Vanauk said that he saw Eager in April, 1834, put up the fence around the grain-field, and he came up every week to look after it, and the witness said that at Eager’s request, he looked after it, to keep cattle &c. from trespassing.
    The plaintiff having rested, the defendant by his counsel moved the court to non-suit the plaintiff, upon the ground, that the plaintiff had failed to prove or shew any legal right to recover j which motion upon argument of counsel on both sides, the court overruled.
    The defendant then offered to read in evidence, a deed for the same land, from Davis and his wife to W. Westbrook, duly executed and acknowledged, on the ninth day of June 1834, in the usual form, without any reservation. Which was overruled by the court.
    
      William T. Anderson of Counsel, with defendant below.
    
      Daniel Haines of Counsel with plaintiff below.
   The decision of the court, was delivered by

Ryeiisoií, J.

On the trial of this cause in the court below, Eager offered in evidence, a paper not under seal, but signed by Davis, purporting to be a bill of sale of the grain in question, with an acknowledgment at the foot, of the receipt from Eager, of the price. The reception of this paper, was resisted. And it was here objected, that it was the mere admission of.a person not a party to the action. But is it not evidence, that the person who signed it, and who, it is conceded, once owned the grain in question, had yielded all his rights thereto, to Eager ? Is it not conclusive evidence against him ? If so, is it not also evidence against his privies ? And is not the person subsequently holding under him, such a privy? It was abundantly shown and admitted, that both parties claimed under Davis. There was also evidence of a possession, corresponding with the purport of the paper; and that Westbrook had notice of the sale to Eager, before his own purchase. I see no error in the introduction of this paper.

Again it was urged, that the deed of conveyance of the farm, offered in evidence by the defendant below, was improperly rejected. It was alleged to have been offered, not as evidence of title to the land, (as such it was clearly inadmissible) but only to prove title to the grain, a mere chattel, and as such passing by the deed. But this is a mistake. The grain is not mentioned in the deed. If it passed thereby, it passed, not as a simple chattel, but as an appendage to the freehold. If the freehold did not pass by the deed, clearly the grain did not. This question, whether the freehold passed by the deed, the justice, and the Common Pleas, on an appeal from his judgment, are by the statute, rendered equally incompetent to decide. They cannot inquire iuto it, or pass upon the evidence. The deed, therefore, was properly rejected by the courts below.

It was also urged, that the circuit record, transcript and postea, offered in evidence in the courts below, should have been received. By them, the defendant below offered to prove, that the matter in controversy had already been determined. But it is well settled as a general rule, that a verdict and postea are not evidence until judgment be entered thereon: or in other words, the postea without the judgment. Phil. Ev. 293. 1st Starkie 245. The cases to be found, of a contrary aspect, depend upon special circumstances, which do not exist in this case.

A further question was made on the argument, whether growing grain, is such a chattel as would pass by parol, against a subsequent deed and conveyance of the freehold ? A doubt, at least, might arise ’from what was before said, whether the parties were in .a situation, or before a tribunal, wherein that question can be investigated. But without resting on that doubt, it is well known, that a distinction has long existed between perennial productions of the earth, and the annual fruits of annual labor. In almost all cases the latter are now regarded as a mere chattel. They pass to the administrator and not to the heir: they may be taken in execution under a fi. fa. against chattels merely ; and as such sold by parol. Toller’s Law of Exr. 149-150. Whipple v. Foot 2 Johns. 418. Newcomb and al. v. Ramer, Id. 421, in note. Perhaps as between vendor and purchaser of real estate, a different rule may exist, about which however, it is unnecessary to form or express any opinion. I have no difficulty in coming to the conclusion, that the purchaser by parol, of a growing crop of grain, acquires a good title, not only against the seller, but all other persons subsequently claiming under him. I think therefore, the title of the plaintiff below, was made out by legal and competent evidence. Whether that evidence was sufficient to produce conviction, is a question with which we cannot intermeddle.

On the whole, I perceive no error of the Court below, and their judgment must be affirmed.

Hoenblower, C. J. and Ford, J. concurred.

Judgment. affirmed.

Cited in, Bloom v. Welsh, 3 Dutcher 180-404.  