State v. . Crook , 132 N.C. 1053 ( 1903 )

Indictment for removing crop under The Code, sec. 1759. There was no conflict of evidence that the rent agreed was a 450-pound bale of lint cotton, that the cotton land was subrented by the defendant to one Bogan, that the defendant rented (1054) the land mainly for the meadow, which he himself mowed, and that he carried off the hay therefrom, and that the cotton was removed by Bogan; that no rent has been paid and no notice of removal was given. Bogan testified that he removed the cotton by order of the defendant, and the landlord testified that he never gave any consent to the removal of any part of the crop, and, on the contrary, notified the defendant not to remove anything until the rent was paid. The defendant testified he did not tell Bogan to remove the cotton, and that the landlord agreed beforehand he might remove the cotton.

The court instructed the jury, among other things, that if they should find from the evidence that the defendant removed the hay or the cotton from the land without giving the landlord or his agents or assigns five days' notice and without the consent of the landlord or his assigns, and before discharging all the liens held by the landlord or his assigns, or if he aided and abetted any one else in so removing the crop from the land, then he would be guilty. The court instructed the jury that if they should find the defendant guilty at all under the charge of the court they would say in returning their verdict whether they found him guilty of removing the hay or the cotton or whether they found him guilty of removing both hay and cotton. The jury returned a verdict of guilty of removing both the hay and the cotton. The defendant was fined $5, and appealed.

The defendant excepted to the charge that the defendant would be guilty if he aided or abetted the subtenant in removing the cotton from the land. In this there was no error, for subrenting did not release the landlord's lien upon the cotton. Montague v. Mial, 89 N.C. 137; Moore v. Faison, 97 N.C. 322. The intent in making the (1055) removal was immaterial (S. v. Williams, 106 N.C. 646), and there is no exception on that ground. The jury having found the defendant guilty of unlawfully removing the cotton, even if there had been error as to the charge for removing the hay, it would have been harmless error. But as the matter is one of considerable interest to those engaged in agriculture, whether as landlords or tenants, that part of the case is also considered by us.

We pass by, as needing no comment, the refusal to charge that there was no evidence, and come to the two remaining exceptions. First, that the court refused to charge, as requested, "Hay not being a cultivated crop, if the jury should find that the defendant did not remove any article but the hay, your verdict should be not guilty." This was properly refused, both because it ignored the fact that if the landlord directed the tenant to remove the cotton the jury could not find "Not guilty," and because it is not true as a proposition either of law or fact that "hay is not a cultivated crop." By the census of 1900 it appears that the value of the hay crop of this country exceeds by more than $100,000,000 the total value of our cotton crop, and, notwithstanding the large yield from the vast unsown prairies of the West, that more than three-fourths of the hay crop is raised on cultivated land. The same census shows that six out of every seven tons of hay cut in this State are cultivated grass, only one-seventh being natural grass. Hay is not cultivated like cotton, any more than wheat is cultivated in the sense that corn is, but the court could not therefore lay down the proposition that either wheat or hay is "not a cultivated crop."

The other exception is that the court charged that "grass was subject to the landlord's lien, and that the defendant would be guilty if he removed the hay from the land." There is no presumption and no evidence that this was uncultivated hay, and the presumption of law is that the proceedings below were correct. Neither the word (1056) "meadow" nor the word "hay" ex vi termini import that this was an unsown meadow or that it was natural grass. Indeed, the general usage is that both rather indicate cultivation than the contrary. In Reg. v. Good, 17 Ont., 725, it is said that the word "hay" does not import whether it was hay from natural grass or from grass sown and cultivated, and from the census, as above stated, it appears that the great bulk of hay is in fact cultivated grass. As to "meadow," John Milton, that great master of our English tongue, understood its ordinary meaning to be a cultivated and tended grass plat, for in l'Allegro he speaks of

"Meadows trim, with daisies pied";

and the law writers take the same view. Black's Law Dictionary defines "meadow" as "a tract of low or level land producing grass, which is mowed for hay — Webster." In Barrows v. McDermott, 73 Me., at p. 452, the Court held that the word "meadow," in the absence of evidence, means cultivated and land growing grass sowed thereon.

But take it that the evidence showed that this was hay mown on a natural meadow, the landlord's lien clearly attached, both within the language and intent of the statute. It would be very singular if it were not so when the defendant testified that he rented the land, and told the landlord so, mainly for the purpose of mowing the hay on this meadow. It was the "crop" he had in anticipation. That the rent was to be paid in cotton did not release the lien given by the statute (The Code, sec. 1754) "on any and all crops raised on said lands," any more than if the rent had been payable in money. The words "crop raised" mean simply the crop grown or gathered during the year. The word "raised" appears nowhere else in that section, nor in section 1755, nor in succeeding sections, only the word "crop" being used. The Legislature had in mind no distinction between fructusindustriales and fructus naturales, and there was no need of any the word "crop" covers both, says 8 A. and E. Enc., 302. Webster defines "crop — that which is cropped, cut or gathered (1057) in a single season." In Goodrich v. Stevens, 5 Lans. (N. Y.), 231, the Court says: "A crop is primarily some product of the soil gathered during a single year." And in Emerson v. Hedrick, 42 Ark. 265, it is held that wild prairie grass when cut is a "product" which is subject to the laborer's lien for moving it.

In 8 A. and E. Enc., 302, it is said that crops are divided into two kinds, fructus industriales and fructus naturales, the material difference being that the latter are the part of the crop which does not go to the outgoing tenant as "emblements," nor to the personal representative as against the heir. This division is one made in favor of the landlord and not against him. Our statute gives the landlord a lien for his rent "on any and all crops," that is, on all that is "cropped, cut or gathered" in that season from his land, and there can be no rule of construction which would deprive him of a lien on that very part of the crop which by reason of public policy has always been held so closely vested in the landlord that the tenant can neither claim them as emblements nor the personal representative. See Black's Law Dict., "Emblements," and Bouvier, ditto. InReiff v. Reiff, 64 Pa. St., 134, it was held in favor of the landowner that when tenant for life died during the year, the grass uncut, even when cultivated grass and ready for cutting, went to the owner of the reversion, and not as emblements to the lessees of the land, the Court adding: "The learned judge in the court below is a practical farmer, thoroughly acquainted with the established usages of our State, and we have no hesitation in agreeing with him that this crop of hay was not emblements, and belonged to the executors of the testator (the landlord)." The cases cited by defendant's counsel,Brittain v. McKay, 23 N.C. 265, 35 Am. Dec., 738; Flyntv. Conrad, 61 N.C. 190; 93 Am. Dec., 588; Walton v. Jordan, 65 N.C. at p. 172, and Bond v. Cooke, 71 N.C. 100, so far (1058) as they apply at all, are directly against him, in that they hold that the fructus naturales inhere in the owner of the land, the tenant or personal representative having a claim only on thefructus industriales. The distinction, however, has no bearing here, as the law says, and plainly intends, that what crop a tenant raises, gathers, or gets in any way out of the land is subject to the lien of the landlord till his rent is paid, and the tenant is forbidden to remove any part thereof without payment of the rent, unless there is notice to the landlord and his consent to the removal.

The landlord's lien attaches to all the crop, and hence applies to hay, whether grown from natural or cultivated grass.

Nothing in this opinion has reference to an ordinary grass or hay patch, the spontaneous growth of the soil, as a volunteer stand of crabgrass, forthat state of facts is not presented. On the contrary, the evidence of the defendant and of the prosecutor concurred, as above set out, that the land was rented by the defendant chiefly for the purpose of mowing this meadow, and that this was stated when the land was rented.

There was a failure at first to send up the judgment in the transcript, but instead of dismissing the appeal, as might have been done (Rosenthal v.Roberson, 114 N.C. 594; S. v. Hazell, 95 N.C. 623, and other cases cited in Clark's Code, 3 Ed., p. 734), the Court ex mero motu sent down acertiorari to obtain it, as was done in Foster v. Hackett, 112 N.C. 556, and other cases.

In S. v. Cameron, 122 N.C. 1074, by reason of the failure of the clerk to send up, as in this case, an important part of the record, it was ordered that he should be "allowed no costs for the making and sending up the transcript of the record," the Court saying: (1059) "The omission to send up that part of the record is too grave a matter to be passed over by this Court." The same order of disallowance is made in this case. The Constitution, Art. IV, sec. 8, gives this Court general supervision and control of proceedings in the lower courts.

No error.