On the trial the facts proved were substantially as follows: (171) The defendant, Jordan, was in possession of a tract of land, which in May, 1866, he conveyed by a deed in trust to the *Page 131 plaintiff, and the crops growing on the land that year were sold by Jordan and the proceeds applied under the plaintiff's direction to the purposes of the trust. The same land was let to tenants for the year 1867, who were to pay the rent in kind to the plaintiff. In 1861, a judgment was rendered against the defendant, Jordan, in the County Court of Gates County, upon which an execution was issued, levied upon the defendant's said tract of land and returned to the August term of the Court. Successive writs ofvend. expos. were then issued, and in September, 1867, the land was sold by the Sheriff of Gates County, when the execution creditor became the purchaser, and then sold the land to the defendant Hollowell, who together with the defendant, Jordan, took the growing crops then on the land and converted them to their own use.
His Honor charged the jury that no interest in the crops of the rents for the year 1867, passed by the Sheriff's sale, to which the defendants excepted. There was a verdict and judgment for the plaintiff, and the defendants appealed. The sale made by the Sheriff in September, 1867, only transferred to the purchaser such interest and estate in the land as the debtor had at the time of the levy of the original fi. fa.
The levy of the fi. fa. in 1861, created a lien in favor of the plaintiff in the execution, and gave the Sheriff authority to sell the land levied on.
The subsequent vend. expos. only continued the lien, and the authority which the Sheriff had acquired under the original fi. fa. The lien was not a title, but only a charge upon the land, and (172) the debtor had the right to sell the same, and the deed in trust made in 1866, to the plaintiff in this case, conveyed title subject to the subsisting lien. The crops growing upon the land in 1867 were not embraced in said levy, and did not pass by the sale made under the vend. expos., founded upon such levy, but remained the property of the plaintiff who was the owner of the land at the time of the sale. Annual crops which are regarded in law as fructus industriales, do not necessarily pass with the title of the land. For many purposes they are considered as personal property and may be sold and transferred by parol, as they are not embraced in the statute of frauds. While they are growing they pass by presumption of law with the title of the land, but this *Page 132 presumption may be rebutted, even with parol evidence. In the case before us the legal presumption is fully rebutted, for they were not included in the levy of 1861, and of course did not pass by the sale under which the defendant, Hollowell, claims the land.
We will not further consider the principles involved in this case, as they are elaborately discussed in Bittinger v. Baker, 29 Penn. R. 66;Badham v. Cox, 33 N.C. 456; Brittain v. McKay, 23 N.C. 265; Flynt v.Conrad, 61 N.C. 190.
There was no error in the charge of his Honor, and the judgment must be affirmed.
Per curiam.
Judgment affirmed.
Cited: Ray v. Gardner, 82 N.C. 456; Kesler v. Cornelison, 98 N.C. 385;S. v. Green, 100 N.C. 423; S. v. Crook, 132 N.C. 1058; Buie v. Kennedy,164 N.C. 299; Jeffreys v. Hocutt, 193 N.C. 334.
(173)