[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 419 I am of opinion that, upon the facts proved, and about which there was no controversy, the plaintiff was entitled to the verdict which he obtained. The owner of land may lawfully contract for its cultivation, and may provide in whom the ownership of the product shall vest. The bargain in this instance was that it should vest in Ray, the owner of the land. It was competent for the parties also to provide that upon the happening of any other event, or the performance of a condition, the ownership should be changed; and this was done in the present case by the provision which was made, in effect, that upon the payment or security of the agreed rent Ray's ownership should cease and that the flax should then become the property of Reed. It was inaccurate to call the original arrangement a conditional sale of the flax. There could, strictly speaking, be no executed contract of sale, because the subject was not in existence, and because also Reed, the supposed vendor, was never its owner. It was grown under the contract of letting, and by the provisions of that contract it became the property of Ray as soon as it became the subject of property in any one. No doubt fraud might be predicated of such an arrangement. For instance, the whole transaction might be feigned, and the formal terms be collusively devised only as a cover to protect the proceeds of the labor of the debtor from the pursuit of his creditors. There was no evidence upon which to base such an allegation *Page 420 in this case. Reed was insolvent, and was hence obliged, if he cultivated land, to bestow his labor on the land of some one else. Ray had land, which he appears to have been unwilling to let to Reed, except under a bargain that the fruits of the cultivation should vest in him. Such a bargain was made, and there is no evidence to show that it was in any respect fraudulent or collusive. When the crop matured, the legal property vested in Ray. Reed was entitled to a certain interest in it, namely, the right to acquire it by the performance of the condition, that is, by the paying or securing the rent. That interest was liable to be reached by the creditors of Reed by a proceeding in equity. But it could not be taken under a process of fieri facias, which only authorizes the levying the debt of the goods and chattels of the debtor. It follows that the idea of a pledge or of a sale, absolute or conditional, has no application to the case. The law requiring a change of possession between vendor and vendee is inapplicable for the same reason. The flax was at all times the property of Ray. His title was original and did not arise out of a purchase from Reed. What took place when the property was carried into Reed's barn is unimportant, except as confirming the evidence of the original transaction, and showing that Ray had not abandoned his rights. The title to personal property draws after it the possession, and, in judgment of law, this flax was as fully in the possession of Ray, while it was in Reed's barn, as it was when growing on Ray's land.
These conclusions seem to me so obvious upon legal principles which are universally acknowledged and uniformly acted upon, that a reference of cases is scarcely necessary. As long ago as the time of Chief Justice HOBART, who was the immediate successor of Sir EDWARD COKE, in the Common Pleas, it was held that one proposing to plant crops, might convey them in advance, and that the fruits which should arise afterwards would pass as soon as they were extant. (Grantham v. Hawley, Hobart, 132.) InFoote v. Colvin (3 Johns., 216), two plaintiffs brought trespass against the defendants for cutting and carrying away a crop of rye, *Page 421 which one of the plaintiffs had raised upon the land of the other under an arrangement that the one who owned the land should have one-third, and the other plaintiff, who raised it, should have the remainder of the crop. It was held that the crop vested in them in these proportions, and that they could sustain a joint action. The same principle had been affirmed in Hare v. Celey (Cro. Eliz., 143). These cases are sufficient to show that crops to be raised are an exception to the general rule that title to property not in existence cannot be affected so as to vest the title when it comes into being. In the case of crops to be sown it vests potentially from the time of the executory bargain, and actually as soon as the subject arises.
I perceive no reason to doubt the validity of the transfer from Ray to the plaintiff. The flax had been levied on by the defendants at the time of the execution of the bill of sale, but that did not divest the title. It was still the property of Ray, and subject to his disposition.
But it is said there was no sufficient evidence of a conversion. The formal levy was a conversion at the election of the owner of the property. Ray was then the owner, but he did not elect to sue for the tort, but sold the property as he would have done if it had not been levied on. Had the plaintiff, the purchaser, then brought trespass de bonis asportatis, as the judgment for the plaintiff would have changed the title of the property by relation as of the time of the trespass, which would have overreached the plaintiff's title, there would have been an incongruity in the recovery. But the action was replevin, or, as it is now called, an action for the recovery of the possession of personal property. Personal property may be taken and detained from the owner, and such owner may yet dispose of it to another, for his title is not divested. The purchaser may take it from the wrongful possessor; or, if he will not give it up, he has the same remedy which the original owner had to recover the possession. It may be that he ought first to require the delivery of it to himself; but if that was necessary, it was done in this case. But if this view is not satisfactory, and the action *Page 422 requires the same evidence which would be necessary to support trespass or trover, I still think the proof was sufficient. The sheriff had the constructive possession under his levy. The plaintiff might waive the wrongful act of taking and proceed upon the conversion implied by the refusal to deliver it to him, the owner, on demand. I think the formal difficulty suggested does not exist.
The exceptions are not well taken. The offer to show that Reed had practiced frauds upon his creditors by transactions with other people, did not tend to prove that the transaction in question was not bona fide. Such evidence might possibly have been competent in connection with other evidence of fraud bearing upon the particular transaction under consideration. But no such other evidence was given or offered. The other exception was to the exclusion of evidence that Reed had requested Newcomb to bring this suit. If it had been admitted that Ray had sold the property to Reed because he wished to avoid the trouble of a lawsuit respecting it, the fact would not have been material in any aspect of the case.
I am for affirming the judgment of the Supreme Court.
Judgment affirmed. *Page 423