Voils v. Battin

Schoonover, J.

This action was commenced in the District Court of Sumner County by R. F. Battin against W. H. Voils and W. M. Ferguson to recover for the alleged conversion of some wheat. The case was submitted to the court below upon an agreed statement of facts. Judgment was rendered in favor of plaintiff below, and the defendants below bring the case here for review.

The plaintiffs in error purchased from W. A. Hoppe, for a valuable consideration, certain real estate on which were sixty-three acres of growing wheat. Hoppe executed to the plaintiffs in error a warranty deed which contained no reservations whatever. Before the sale by Hoppe to plaintiffs in error, the defendant in error, at a constable’s sale, purchased Hoppe’s interest in the wheat growing on the land sold to plaintiffs in error.

The general rule is well settled that, as between the seller and the purchaser of real estate, growing crops are a part of the realty, and, in the absence of any ex *743 press reservation, pass with the title; yet for some purposes growing crops, annual and not perennial in their nature, which are the product of cultivation by the owner of the soil, are, in law, regarded as personal property. They may be mortgaged by the owner while they are growing and immature, and, for the purpose of levy and sale on execution, in this State, are'to be treated as personal estate.

In this case, as in the case of Polley v. Johnson ( 52 Kan. 483 ), “we have here the bare question as to whether immature growing crops are a part of the realty, as between debtor and creditor, or are personal property, subject to attachment and sale for debt.”

Following the case just cited, we must hold that the growing wheat levied upon and sold by the constable was personal property and subject to levy.

The judgment of the District Court is affirmed.