Cubbage v. Clements

• Decision Date: 28 May 1940
• Citation: 40 Del. 497,14 A.2d 378
• Parties: WALTER S. CUBBAGE, a constable in and for Kent County, State of Delaware, v. JAMES R. CLEMENTS and CHARLES S. CLEMENTS, a co-partnership trading and doing business under the firm name and style of W. F. & J. R. Clements
• Court: Delaware Superior Court

14 A.2d 378

40 Del. 497

WALTER S. CUBBAGE, a constable in and for Kent County, State of Delaware, v. JAMES R. CLEMENTS and CHARLES S. CLEMENTS, a co-partnership trading and doing business under the firm name and style of W. F. & J. R. Clements

Superior Court of Delaware, Kent County

May 28, 1940

Superior Court for Kent County, February Term, 1938.

Case heard on agreed statement of facts.

From the agreed statement of facts it appears that Raymond Ford owned a farm in Kent County on which he lived and on which in the Fall of 1936, he planted forty acres of wheat; that on May 5, 1937, J. A. Frear & Sons obtained a judgment before a Justice of the Peace against Ford, amounting to $ 110.11, and on the same day issued an execution; that this execution was delivered to Walter S. Cubbage, the plaintiff, a constable for Kent County, who, on May 7, 1937, made a levy under said execution; that among other things the constable levied on the forty acres of wheat then growing and in the possession of Ford, the owner of the land and tiller of the crop. Subsequently Ford harvested the wheat and sold it to the defendant for the sum of $ 425.70.

The agreed statement of facts states:

"That the only questions to be determined by the Court are whether a growing crop of wheat planted by the owner and occupier of a farm is a part of the freehold or is a chattel subject to levy before it is cut and severed from the freehold, and whether the grain merchants so buying and paying for and disposing of it without knowledge of the levy, have any liability to the officer who had levied on said growing crop by virtue of such execution."

Judgment entered for the plaintiff.

Max Terry for plaintiff.

Charles L. Harmonson for defendants.

RODNEY and SPEAKMAN, J. J., sitting.

OPINION

RODNEY, J.

It is the almost uniform current of the law that growing wheat, like all other annual crops which are raised by yearly manurance and labor and essentially owe their annual existence to cultivation by man, is subject to execution. These are usually called "fructus industriales" as distinguished from "fructus naturales" like trees and their fruit, which do not owe their existence to annual manurance and labor. Most of the authorities are collected in annotations in 103 A. L. R. 464 and 23 L. R. A. 258. See also 1 Freeman on Executions, Sec. 113; 23 C. J. 329; 17 R. C. L. 111. The principle is recognized by Revised Code, 1935, Sec. 5052.

The present case is quite similar to Cochran v. Clements, 7 W. W. Harr. (37 Del.) 410, 183 A. 632. There it was determined that the interest of a tenant farmer in a growing crop of wheat of which he was in possession was liable to execution and sale. We see no distinction, insofar as liability to execution is concerned, between the interest of a tenant farmer in possession, and the interest of an owner of real estate who is in possession of the farm and the tiller of the crop. The generality of the statement "that grain growing * * * is personal property and may be * * * sold upon execution" is subject to the consideration that it is the interest of the person entitled to possession that can be so sold. Long v. Seavers, 103 Pa. 517.

It is upon this basis that the Court sustained the levy in Currey v. Davis, 1 Houst. (6 Del.) 598. There the Court held the agreement between...