This case involves the priority of claims of the respective parties to crops of wheat and oats, both claims arising just after the crops were planted, and while immature. The claim of appellant is based on a chattel mortgage executed by the owner of the crop, a tenant on the farm of a third person, and the claim of appellee is based on the levy of an execution on said crops while immature, the writ being issued by a justice of the peace. In other words, the controlling question is whether growing immature crops are subject, to levy and sale under execution issued by a justice of the peace. The crops were planted about the middle of October, 1921. The execution was issued and placed in the hands of the officer on November 23, 1921, and the mortgage was executed to appellant on November'29, 1921, .by the tenant who planted the crop.
It seems to have been the rule at common, law that growing crops, whether mature or immature, requiring periodical cultivation and technically classed as “fruits of industry,” were subject to levy and sale under execution as personal property, and a majority of the American cases declare that to be the correct rule of law. The rule is based on the theory that such crops are chattels, not forming a part of the realty, and, on the death of the owner, descend to the administrator and not to the heir. Many cases on this subject are collated in 15 Standard Proc. 892. Many of the decisions classed among those announcing that rule are based upon local statutes, and many of them merely declare the rule as applicable to the operation of the statute of frauds in the sale of such property. It must be conceded, however, that a majority of the eases declare it to be the rule that such crops are subject to sale under execution as chattels, but there are decisions to the contrary, and they appeal to us as being more reasonable and in harmony with our own statutes and decisions.
In Penhallow v. Dwight, 7 Mass. 34, the court draws a sharp distinction between mature and immature crops with respect to the right to levy an execution thereon, and holds that immature crops are not subject to execution because they cannot be immediately severed from the soil. The court in that case said:
“And we have no doubt that corn, or any other product of the soil, raised annually, by labor and cultivation, is personal estate, and would go to the executor and not to the heir, on the decease of the proprietor. It is therefore liable to be seized on execution, and may be sold as other personal estate. An entry for the purpose of taking unripe corn or other produce, which would yield nothing, but in fact be wasted 'and destroyed by the very act of severing it from the soil, would not be protected by this decision. ”
In Ellithorpe v. Reidesil, 71 Iowa 315, it was held that immature crops are not subject to levy under execution, and the court said:
“There is no pretense that the constable had any authority or power to levy on or sell any interest in the real estate. Nor is it claimed that he did so. The whole proceeding was on the theory that the crops were personal property, and could be. levied on and sold as such. But while they remained immature, and were being-nurtured by the -soil, they were attached to and constituted part of the realty. They could no more he levied upon and sold on execution as personalty than could the trees growing upon the premises.. This doctrine is elementary, and it has frequently been declared by this court. ’ ’
The same doctrine is declared in the case of Tipton v. Martzell, 21 Wash. 273. The decision in that case was based primarily on the ground that the crop was being grown by a share-cropper, and that a sale would conflict with the contract between the rights of the landlord, but the court recognized the general rule that the immature crop, while still being nurtured by the soil, was a part thereof, and could not be sold while in that condition.
The reason which appeals to us as favoring the latter rule is that a sale of chattels under execution contemplates an immediate separation - from the- estate of the judgment debtor and a delivery to the purchaser, and it is obvious that this cannot be done where the growing-crop is immature and n-ot ready to be -severed from the soil. It requires time and, in most instances, additional labor to bring the crop to maturity, hence the mere right of ingress and egress for the purpose of severing the crop does not eliminate the impediments to the sale.
The common law of England has been adopted as a part of the laws of this State to the extent that “the same is applicable and of a general .nature” and “not inconsistent with the Constitution 'and laws of the United States and’the Constitution and laws of this State.” Crawford & Moses’ Digest, § 1432. We are of the opinion, however, that the common-law rule with respect to sales of crops under execution is impliedly in conflict with our statute which provides that leasehold estates shall not he subject to sale under execution issued by a justice of the peace. Crawford & Moses’ Digest, § 4271. It may be that sales of immature crops under executions issued from courts of record may. be upheld on the ground that such a sale of the crop is to that extent a sale of the lease, but this cannot be so with reference to a sale under an execution issued by a justice of the peace. A sale under such an execution can confer no rights with respect to real estate or anything appurtenant thereto, and the right to enter upon land for the purpose of cultivating crops to maturity necessarily affects the land as much so as the removal of things which are appurtenant to and constitute a part of the land itself. It is otherwise, of course, where the crops are matured and only remain to be severed, for in such case the matured crop is in no different class than any other chattel situated on the land.
Our conclusion therefore is that it is inconsistent with our own statutes to hold that immature crops can be sold under an execution from a justice of the peace. There are other questions involved in this case, but as the one now decided is conclusive, it is unnecessary to discuss the others.
The judgment is therefore reversed, and the cause is remanded, with directions to enter a decree in favor of appellant for the proceeds of the sale of the mortgaged crop, which is being held by agreement to await the decision in this case.