
    Whipple against Foot.
    corn growing-is a chattel, UJcen h/exewhere a She-of an executions in \tbe cembe 805-seized all the perty^ofThe debtor, and particularly mentionedthe intheground occupied by and ?a\be’ month of Auing-,\vhenThe vesi,cut&car- and soldIt at auction; and executfonwas issued in August against ük; same levied’on the tome wheat wln'e in the sheajfaad be-moved^frota" the-gronnd, it was held that the first execution was not dormant, or within the rule, that where goods taken on execution, are left in the hands of the debtor, the execution is fraudulent and void against a subsequent execution, but that the sheriff might sell the wheat on the first execution, having taken all the possession of which the nature of the chattel was susceptible.
    This was an actionof trover, for a Quantity of wheat- ie-the sheafs The cause was tried at the circuit in Madison the- third day of duly, 1807,- before Mr. Justice ^an ^Tess> when a verdict was found for the- defendant,subject to the opinion of the court on a case,, containing all the evidence produced at the trial. The following are the material facts.
    Ont;he 16th August, 1806, a fierifacias issued out of js Court, at the suit of B. Wilber and S. G. Wilber,-7 . _ - against RcubenJKatfafe, tested the 11th August,, louo, and returnable the second Monday of November thereafter, directed to-the sheriff of Madison county, the plaintiff in | this suit, commanding, him- to levy 1,037 dollars and 10 cents,, &c. The sheriff, on. the 16th August, went to the , , tit» house of Hatch, for the purpose of levying on all mspro-Pertf5 hut he did not go into the field where the wheat was. On the 18th Augiost, the sheriffwent into the field wheat, and made a formal levy, and took an account of it. found William Hatch in the field with a Burn-her of men, engaged-in removing the wheat, and was informed,t^ht they acted by the directions of the defend-i ant, the sheriff of Chenangof* The defendant notwith- * standing the notice and remonstrance of the plaintiff, took the whe$t and sold it at auction-. It appeared- that a. judgment had been entered up the 9th December, 1805j a„-ainst Jleuben Hatch, at the suit of William Hatch, and ® # tbiatan execution on the judgment was taken out, return" February term-,. 1806, ancT delivered the 18th He-cember, 1805$. to the defendant, as sheriff of. Chenango \ . . county, which, at that time comprehended what is now the county of Madison. Reuben Hatch had .made a parol ✓
    
      •contract, in December, 1803, with one Smith, to have the ' . use or the land on which the wheat in question was t;aised, until he was paid for clearing tile land. The defendant also gave in evidence a bill of sale of the wheat, executed by Reuben Hatch, to persons of the name of Wells and Ten Eyck, dated the 10th December, 1805. In Dcember, the defendant went to the house of Reuben Hatch, and levied on all his personal property, at which time the wheat in question, then in the ground, was particularly mentioned; but Reuben Hatch made no mention to the defendant of the bill of sale to Wells and Tenyck. It appeared also, that ten acres of the wheat levied upon by the plaintiff, were claimed by one Pierce. /It was agreed, that if the court should be of opinion that the plaintiff was entitled to recover for the whole wheat, that then the verdict should be set aside, and that the defendant should give a cognovit actionem for 500 dollars; but if the quantity claimed by Pierce was to be deducted, theri-.the cog-novit should be for ^5 dollars; but in case the court-should be of opinion; that the defendant had made out his defence, then a judgment of nonsuit was to be enter•ed.
    £As the court confined their opinion to the single point, whether the first execution and seizure under it by the defendant wasV good defence, the evidence as to the bill of sale, and the arguments of the counsel as to its effect, are omitted.]
    
      Kirkland, for the plaintiff.
    The execution held by the defendant, was returnable in February term, 3806, and the wheat in question vi&s in fact taken in August following. A sheriff cannot levy on the property of a debtor, after the execution has expired. If Reuben Hatch had any interest in the wheat, while it was growing, it must be as the possessor of the soil. But the defendant did not levy on it as a chattel real, but as personal property. The sheriff may enter and cut corn growing, and sell it on an execution, but until it is severed from the ground it is not personal property. In August, when the wheat was cut, the defendant had no right to enter and take the wheat, for the execution having expired, was inoperative. Again, the execution in favour of William Hatch must be considered as fraudulent and void, in regard to creditors, or a subsequent execution. If an execution be suffered to lie dormant in the hands of the sheriff, or if the goods be suffered to rgmqin in the hands of the debtor, it is fraudulent, and a second execution will hold the goods. Here the execution remained dorm ant for near six months in the hands of the defendant; nothing was known of it until the second execution had issued.
    
      Gold, contra.
    In the division of the property, the law considers growing crops as personal property. In the case of Cox v. Godsalve,
      
       it was decided, that corn grow-, ing passed to the devisee of the personal property, and not to the devisee of the land. Things annexed to the freehold, and which may be severed, may be contracted for with a view to their separationflmd when sold in contemplation of such severance, are considered as bare chattels: And an agreement for the purchase of them by parol is valid, and not within the statute of frauds., 
      Permitting an execution to sleep in the hands of a sheriff, is only prima facie evidence of fraud, and may be rebutted by other evidence. In the present case, the nature and situation of the thing sufficiently accounts for the delay in the removal of the corn, and repels every presumption of fraud. Again, the second execution was not delayed; for as soon as it appeared, the first execution became active, and the corn was immediately carried away and sold.
    
      
       1 Salk. 368. 4 Comyn's 'Dig. Execution, 420, 121.
    
    
      
      
        jjevoe v.
    
    
      
      
        Wilson, 44. 7 Mod. 37j38. 1 Ld. Raym. 251. 2 596.
    
    
      
       6 East,604. in note, but see Toller's Law of Executors, 2 ed. 203,204, 205, 206.218, 219.
    
    
      
      
        Roberts on Frauds, 129. 1 Ros. ¿y' Pul. 397. 2 ,/oAn<0)1,52. 1 Ld. Raym. 182. Bal. JV.P.34. Winch. 51. but seeCrosbey v. Wadsworth, 6 East. 602’. ■where a parol agreement with the own. er of a close for a erop of grass then growing was held to be within the 4th sec. of29Cor. II. c. 3. and void. See also Waddington V. Bristovj, 2 Bos. S¡ Pul. 452.
    
    
      
      
         In the course of the argument, the case of JVciocomb, Agan and Randall v. .Ramer, decided inFehruary term last, was mentioned. That cause came before this court on a writ of error from the Rensselaer Common Pleas. The facts were, shortly, these: Randall raised a crop of corn on land belonging to Agan. While it was growing, he sold it by a parol agreement to Ramer, the dc^idant in error; but the plaintiffs in error cut the corn when it was ripe, and carried it away, against the express directions of the defendant in error, who brought an action of trespass de bonis asporiatis, &c. in the court below, and recovered.
      
        Ross, for the plaintiffs in error.
      
        Foot, contra,
      
        P er Curiam. The tenancy in common between the plaintiff and one of the defendants below, was severed. That objection therefore fails. The crop might he sold by parol. Though Agan, one of the defendants below, was the owner and possessor of the land, yet the plaintiff was, in judgment of law, the possessor of the crop; and this was an ac-¡ tion of trespass de bonis asportatis, 8$c. and not guare clausum fregitThe reservation of forty bushels of corn by Jigan, by way of rent, did not make him a tenant in common in the crop, as the rent might be-paid in other corn, and it was a matter resting in contract merely. The omission in the declaration to state the value of the chattel, is matter of form, and cured by the pleading in chief. We are of opinion, therefore, that the judgment below must be affirmed
      Judgment affirmed-
    
   Thompson, J.

delivered the opinion of the court. If the execution, under which the defendant justifies the seizure and sale of the wheat growing on the ground, be deemed sufficient, it is unnecessary to determine the effect of the bill'ofsalé, which forms a distinct branch of the. defence. The defendant, soon after receiving the execution, and between the teste and return of it, went to the house of Hatch, the debtor, and levied on his personal property, and particularly mentioned the wheat in the ground. This was ill^f£)eceiifber. In the ensuing August, when the wheat was ripe for harvest, the^defendant, by virtue of the execution, and with all due diligence, caused the wheat to be cut, carried away, and sold. The fee ofthelandon which the wheat was sowed; belonged to one Smith; and Hatch had the use of it so long onlyas would be sufficient to pay him for clearing. Under these circumstances, I see no valid objections against considering this property as held by this execution. The wheat

je< growing on the ground was a chattel, and as such, subject tQ tajten jn execution. (1 Salk. 368. 1 Bos. and Pul. 397. 6 East, 604. note. Rob. on Frauds, 126.) The defendant, when he levied, took all the possession which rhe subject matter would permit, and it was sold as soon as it was fit to be reaped. This, therefore, could not be considered as a dormant execution, and coming within the operation of the rule, that if a creditor seize the goods of his debtor on execution, and suffers them to remain in his hands, the execution is deemed to be fraudulent, and void against a subsequent execution. (Prec. in Cha. 286. 1 Vernon, 245. 7 Mod. 37. 2 Term, 596.) The reason of this rule is stated to be, that in such case there is no change of possession, and so nb alteration of the property. But in the ease before us the sheriff took all the possession of which the chattel was susceptible. The nature of the property accounts for the delay, and destroys the presumption of fraud that might otherwise exist. The sheriff might, perh^J^have sold the wheat while growing and the purchaser would then have been entitled to enter for the purpose pf putting and carrying it away. But such a sale would probably have been very unfavourable, as the certainty and value of the crop could not be ascertained. (Owen, 70. Vent. 222.) The mere delay in such a case, to sell until the crop should be fit for harvest, will not of itself, amount to a fraud in law; and this is the only ground on which the judgment and execution, under which the defendant justifies, has been impeached. The justification having been made out, the defendant would be entitled to judgment, but by the provision in the case, we can only direct a judgment of non* .suit to be entered.

Judgment of nonsuit.  