Strawhacker v. Ives

• Decision Date: 16 October 1901
• Citation: 87 N.W. 669,114 Iowa 661
• Parties: D. E. STRAWHACKER, Appellant, v. G. IVES & SONS et al
• Court: Iowa Supreme Court

87 N.W. 669

114 Iowa 661

D. E. STRAWHACKER, Appellant, v. G. IVES & SONS et al

Supreme Court of Iowa, Des Moines

October 16, 1901

Appeal from Louisa District Court.--HON. W. S. WITHROW, Judge.

G. IVES & SON recovered judgment against Henry Strawhacker November 1, 1897, and on the first of March, 1898, the latter leased of Ballard 278 acres of land for one year. On June 30th following, execution was issued on this judgment, and was levied on "all the right, title, and interest of defendant, Henry Strawhacker, in and to the following described real estate and the crop of corn thereon as follows [describing the leased land]," and sale was advertised for the fourth of August. On the second of that month the plaintiff, a brother of the execution defendant, filed his petition, alleging that the crops growing on the premises were immature, that he was owner of an undivided three-fifths interest therein, and prayed that the sale be enjoined. Accompanying the petition were the affidavits of plaintiff and the original lessee to the effect that the lease had been assigned to plaintiff, and he was in possession of the premises prior to the levy. A temporary writ of injunction was granted, but subsequently dissolved on motion. Thereafter defendants demurred to the petition on the ground that the judgment was a lien on the leasehold estate, at the time of its transfer to plaintiff, superior to any interest therein acquired by him. The demurrer was sustained, and plaintiff having elected to stand on the ruling, the petition was dismissed, and he appeals.

Affirmed.

H. O Weaver and Blake & Blake for appellant.

Hale & Hale and C. A. Carpenter for appellees.

OPINION

LADD, J.

The affidavits formed no part of the petition, and could not have been considered in ruling on the demurrer. This being true appellant's argument, in so far as based on the thought that the judgment defendant was a mere cropper, is not in point. The petition refers to the crops in controversy as growing "on land leased by H. E. Strawhacker from M. J. Ballard for the year 1898." His, then, was a leasehold interest of one year's duration. 1 Washburn Real Property, 574.

II. The point argued is whether defendant's judgment was a lien on Henry Strawhacker's leasehold interest in the land but, as the petition contains no averment that plaintiff had any claim thereto, the question was not necessarily involved in the ruling on the demurrer; for, if the crops had been severed from the realty by sale prior to the levy of the execution, the lien of the judgment was thereby divested,--that is, the crops thereby became personal property, and ceased to be an "interest in land" on which the statute established the lien of a judgment. The allegation of the petition is that the plaintiff "purchased the aforesaid crops before any levy was made, and the possession of said crops was taken by plaintiff herein before said levy," and he became the absolute owner thereof. Ordinarily, growing crops are to be treated, as contended by appellee, as part of the soil from which they receive nourishment. This is true in event of sale, by the owner without reservation, or on foreclosure of a mortgage. Ralston v. Ralston, 3 Greene 533; Downard v. Groff, 40 Iowa 597; Hecht v. Dettman, 56 Iowa 679, 7 N.W. 495; Stanbrough v. Cook, 83 Iowa 705, 49 N.W. 1010. And in Ellithorpe v. Reidesil, 71 Iowa 315, 32 N.W. 238, it was held that growing crops, being immature, and receiving nurture from the earth, might not be levied on as personal property. On this point it should be said that the authorities are not in...