The power to attach on mesne process does not exist at common law. It is given by statute, and authorizes the *Page 202 seizure of all property, real and personal, which may be taken on execution. Gen. St., c. 205, s. 1.
The statute specifies what property may be so taken, but grass, ripe and fit for harvest, is not included with it. It was not, then, attachable, unless it could be taken on execution at common law. Gen. St., cc. 217, 218, 219, 220.
At common law, all the goods and chattels of the debtor, including emblements and all present profits of the land, could be taken. Com. Dig., Execution, c. 3.
Emblements were regarded as personal property, but that term does not include fruits which grow on trees which are not planted yearly, grass, and the like. It only includes those crops which grow yearly, and are raised annually by expense and labor, or great manurance or industry. The fruits and products of the earth, other than emblements, while they are hanging by the roots, are a part of the realty. As soon as they are gathered they are personal estate. Bouv. Inst. 471, 1518; 4 Kent. Com. 73.
Things which proceed annually of themselves, without the labor of man, are not emblements, as grass, though improved by the labor of man. Com. Dig., Biens G, 1.
Grass and standing trees are part and parcel of the land in which they are rooted, and as such are real property. They pass to the heir as part of the inheritance, and not to the executor or administrator, and they cannot be sold on an execution against chattels only. 3 Kent. Com. 401; 4 Kent. Com. 73; Green v. Armstrong, 1 Den. 550, 554, 556; Cudworth v. Scott,41 N.H. 456, 462, 463; Penhallow v. Dwight, 7 Mass. 34; Miller v. Baker, 1 Met. 27. The grass in question was part of the realty. It was not liable to be attached as personal property, and the defendants' justification fails.
The defendants rely on Norris v. Watson, 22 N.H. 364, in support of their position that the grass, when attached, was attachable, because it was ripe and fit for harvest. That case decides that a growing crop of grass is not attachable in mesne process. The defendant entered the plaintiff's close July 8, and made an attachment of the grass growing there, and left with the town-clerk copies of the writ and his return, and on the 26th of the same month he cut the grass and carried it away. The court did not decide whether the grass would have been attachable if it had been ripe and fit for harvest when attached. The opinion went upon the ground that it was not attachable, because the possession, and the exclusive possession, of the land was necessary to assert the right which the officer claimed; that he could not keep the growing crop fenced and protected until it should ripen, without exclusive possession; and that this would deprive the debtor of any beneficial use of his land, the officer becoming, in effect, tenant of the land under color of authority to attach personal property while the law did not permit him, by attachment of the land in *Page 203 mesne process, to intermeddle with the possession. This view of the case was applicable to all growing crops, and as it was on this ground held that the officer could not justify under his process, it was not necessary to decide whether the grass would have been attachable if it had been ripe and fit for harvest. It being decided that the plaintiff could recover, because the grass was a growing crop and therefore not attachable, it was unnecessary to decide whether he could recover on other grounds.
We have not found it necessary to consider whether, if the grass could have been attached, the attachment could be preserved by leaving a copy of the writ and return with the town-clerk, as in the case of the attachment of the articles enumerated in Gen. St., c. 205, s. 16, and on this point we express no opinion.
When the defendants cut and removed the grass it was not the property of S., because the plaintiff was in possession under her mortgage, and with that possession there was transferred to her the standing grass as part of the realty, and she was entitled to hold it, as against S. and his creditors, until her mortgage debt was paid.
Case discharged.
ALLEN, J., did not sit: the others concurred.