Kettlewell v. Peters
| Decision Date | 11 July 1865 |
| Parties | JOHN KETTLEWELL v. CHARLES P. PETERS, Administrator of JAMES S. PETERS. |
| Court | Maryland Court of Appeals |
APPEAL from the Court of Common Pleas of Baltimore city.
The plaintiff, as administrator of his father, brought this action to recover the value of certain peach trees. The contract for the trees was made by the plaintiff, in March 1857. The farm and nursery whereon the trees were growing was owned in fee-simple by James S. Peters, who died on the 12th of October 1856.
At the trial of the cause, after the plaintiff had offered part of his evidence, the defendant moved the Court to non-suit the plaintiff, on the ground that the suit ought to have been instituted in the name of the heirs-at-law of the deceased. The Court (MARSHALL, J.) overruled the motion, and the defendant excepted, and took this appeal.
The cause was argued before BOWIE, C. J., and BARTOL GOLDSBOROUGH, COCHRAN and WEISEL, J. William B. Bond, for the appellant:
It will be contended, for the appellant:
1st. That, prima facie, trees of every description growing in the soil at the time of the death of the fee-simple owner, intestate, descend to the heirs-at-law, and that the representatives of the personal estate have no interest whatever in such trees.
2nd. That whatever exceptions, to this rule of law, may have been established in favor of the personal representatives of nursery-men and gardeners, who were mere tenants, holding leasehold estates in the soil, that, as between the heir and the executor, no such relaxation of the common law rule exists. Lee vs. Risdon, 7 Taunt., 190. Miller vs. Baker, 1 Metcalf, 27, 33. Coombs vs. Jordan, 3 Bland Ch. Rep., 311 312.
It may be contended by the appellee, that the prayer of the appellant is erroneous, in asking the Court to non-suit the plaintiff. On this point the appellant will contend, that whenever the plaintiff's own evidence shows that he is not entitled to recover, the non-suit is not only proper, but that it is the practice. Talbot vs. Clark, 8 Pick., 51. Rose vs. Learned, 14 Mass., 153, 154. Wilkinson vs. Scott, 17 Mass., 249. Hoyt vs. Gilman, 8 Mass., 335. Inhabitants of Lanford vs. Emory, 2 Maine Rep., 5. Perly vs. Little, 3 Maine Rep., 97.
In the case of Parran vs. Graham, 5 G. & J., 489, Judge BUCHANAN is made to say, that a plaintiff cannot be non-suit against his consent, (a jury being sworn,) but the Court of Appeals reverse the judgment on the very ground on which the non-suit is prayed, to wit: on the ground that one of the parties was both plaintiff and defendant. If it were true that a plaintiff cannot be non-suit against his consent, his consent must always be presumed, since the non-suit enables him to renew his action, and in this case no objection appears to have been made by the plaintiff. But there appears to be no established practice in Maryland on the subject; the case of Parran vs. Graham, is not satisfactorily reported, and is the only case I have seen reported in Maryland on the question.
D. H. Hoopes, for the appellee:
The only ground of complaint by the defendant is, that the Court refused to non-suit the plaintiff. The doctrine on this subject is well settled. A plaintiff is in no case compelled to be non-suited; he has a right to insist that the matter be left to a jury. Graham vs. Harris, 5 G. & J., 497. 2 Tidd's Practice, 869. Even the Courts of the United States have no authority to order a peremptory non-suit. The plaintiff has, they say, a right by law to a trial by a jury, and to have the case submitted to them. Elmore vs. Greymes, 1 Pet., 471. D'Wolf vs. Rayband, et al., 1 Pet., 497. Crane vs. The Lessee of Marris, 6 Pet., 598. Silsby vs. Foote, 14 How., 218.
Again, the record shows that this suit was brought to recover the value of certain peach trees taken from a nursery belonging to the estate of James S. Peters, deceased; that the contract was made by the defendant with Charles P. Peters, his administrator. These peach trees, being planted as a crop, expressly for the purpose of being removed, were emblements or personal property, and, of course, belonged to the administrator. Evans vs. Iglehart, 6 G. & J., 191. By emblements, is understood crops planted or sown, and growing upon the land. 1 Bouvier's Law Dict., 465. Grady's Law of Fixtures, 83.
Where trees, shrubs and other produce are planted with an express view to sale, by gardeners and nursery-men, in their ground, they are emblements, and are removable by them, or their executors or administrators. Lomax on Exrs., 418, 419.
In Penhatton vs. Dwight, 7 Mass., 35, the Court say: " We have no doubt that corn, or any other product of the soil, is personal estate, and goes to the executor, and not to the heir." By the common law, where the deceased was seized in fee-simple, his personal representatives are entitled, in all cases, to the emblements. 1 Lomax on Exrs., 420. Where the deceased was seized in fee-simple of the land, his personal representatives are entitled to the emblements, as against the heir. 2 Law Lib. Grady's Law of Fixtures, 84.
The doctrine of emblements extends not only to corn and annual profit, but to every thing of an artificial and annual profit that is produced by labor and manurance. 1 Wms. on Exrs., 494. 1 Lomax on Exrs., 418, Grady's Law of Fixtures, 83.
When the occupier of land, whether he be the owner of the inheritance, or of an estate determinable with the owner's life, has sown or planted the soil with the intention of raising a crop of such a nature as required annual labor, and dies before harvest time, the law gives to his executors or administrators the profits of the land. 1 Wms. on Exrs., 492. Hops, although springing from old roots, are considered as emblements, because they are annually manured, and require cultivation. 1 Lomax on Exrs., 418.
These well established principles of law clearly show that the trees in this nursery belonged to the personal estate of James S. Peters, deceased, and his administrator having sold them to the defendant, could alone sue to recover their value, and that whether the administrator could sue or not, no non-suit could be entered in the case against the plaintiff's wishes.
The appellee, plaintiff below, declared against the appellant--1st, for goods bargained and sold by the plaintiff to the defendant; 2nd, work done and materials provided by the plaintiff for the defendant, at his request; 3rd, money lent; 4th, money paid; 5th, money received; 6th, account stated. To all which the appellant pleaded " he never was indebted as alleged." A jury being impannelled upon the issues joined, the plaintiff, to maintain his action proved that the contract made for two thousand peach trees, the value of which was sought to be recovered in this suit, was made by the defendant with one Charles S. Peters, (the appellee,) in the month of March 1857;...
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