Williams v. Mitchem

George, J.,

concurring specially. Matured crops, ready to be harvested, though standing in the field, when produced by annual cultivation, are no part of the realty. Such crops must, for most civil purposes, be deemed personalty. This is a workable rule, and the only workable rule. A distinction is to be observed between the natural growth of the soil, such as trees, grasses, and the like, which at common law are parts of the soil, and products the result of the annual labor of man in sowing and reaping, planting and gathering. In my opinion, therefore, the plaintiffs’ petition set forth a cause of action for recovery of the property described therein, and should not have been dismissed on demurrer.

The plaintiffs’ petition was for the recovery of the. crop as personalty. One of them made the affidavit prescribed by statute, to require the defendant to give bail. The defendant having failed to make bond, the plaintiffs executed a bond and took possession of the crops. This court has uniformly held, that a party will not be permitted to assert inconsistent positions, and is bound by .solemn admissions in judicio. In the opinion of -the writer, the court is not authorized to afford to the plaintiffs relief against the judgment on the bond, on the theory indicated in the 6th division of the decision. But, for the reasons already stated, the plaintiffs were entitled to recover the property sued for, under the allegations of the petition. I therefore concur in the judgment of reversal, but not in the rulings stated in the 4th and 6th headnotes, nor in the reasoning set out in the corresponding divisions of the opinion of the court. ,