The record-union., 1895-05-16
GROWING CROPS ARE NOT EXEMPT.
They Are Subject to Execution Like
Other Property.
So Decides Judge Catliu in the Case
of Joseph Melvin Against the
Sheriff of Yolo.

tanned the demurrer to the plaintiffs
complaint in the case Of Joseph Melvin
and wife against G. w. Griffin, Sheriff of
Yolo County. The suit was to restrain
the Sheriff from disposing OF growing
crop belonging to the plaintiffs. on the
ground that the land on which the crop
is situated is homestead. Judge Catlin's
decision, in full, is as follows:
"I have given this case as thorough an
examination as l could. growing crop
may be taken by levy OF an execution,
and the purchaser at sale may enter
upon the land for the purpose of gather
ing and removing the crop. (treeman
on Executions, VOL z, sec. 349, and the
cases cited there in the nOte.) L do not
understand this question TO be disputed.
"In this case the defendant is sheriff,
with an execution upon money Judg-
ment, and has levied upon the growing
crop of the plaintiffs, who are the de-
fendants in the execution. 1t is claimed
that the growing crops are exempt from
the levy by reason OF the land upon which
they are growing being the homestead OF
the defendants In the execution. In an
swer to this it is claimed, first, that The
growing crop of a homestead is not ex-
empt from execution; and, second, that
the land in this case is not homestead III
It's proseut COuultlOu. II cltueI vi tuSso
| two propositions can be maintained II
will follow that the restraining order
upon.the Sheriff must be dissolved.
"With respect to the first proposition,
| the case of Horgan VS.. Amlck (62 Cal. 40l)
| supports the contention that our statutes
| do not exempt the growing crop of
| homestead. 1t is true that in that case
| the grain product of the growing crop
1 was taken on the day 1t was thraShed.
| ga N Saa no raasOu WlV the decision
would not have been the same if the grain
| had been growing at the time 1t was
| taken, because the reasons for the deci-
| sion apply as we'll to the one condition of
| the grain as to the other. In that case 1t
| was urged as reason tor the claimed eX-
| emption that the value of the land and
| the grain was less than $4,000, while in
this case it is admitted that the land (264
acres) is worth more than $4,000.
"As to the second proposition: The
| homestead was subject to mortgage
which had been foreclosed. Thsland had
| been sold under decree of foreclosure,
| but the time for redemption has not ex-
pired. If there should be redemption
| the homestead would remain intact, and
as if it never had been sold under the
! mortgage. If there be no redemption the
| purchasers 8 title will become absolute as
OF the date of his purchase, and the home
stead would be extinct as of the date of
| the sale
"What in such condition is the status
| of the homestead? A homestead title in
vests the husband and wife with an estate
| of q peculiar nature. \ o interest in it
can be- voluntarily alienated except by
the Joint act OF both; and when SO alien
| ated the alienee becomes invested with
an estate of different kind from that of
his grantors. 1t can be divested and
tranferred by legal decree. but its character
changes by the divestiture, and the trans
| feree takes different character OF estate.
"Now, does not the homestead charac-
| ter of the estate remain until the absolute
divestiture, which can take place only
when the deed is executed after the right
of redemption expires? 1t seems to me
that it does so remain, with the home
| stead privilege annexed as an integral
part of the estate. This privilege pro-
| tects the homestead from sale under
execution by other creditors. The right
of redemption could not be sold by an
| other creditor. 1t could not be sold under
q deficiency Judgment in favor of the
| mOrtgagee creditor.
| This of course does not affect the
| question first stated, respecting the ex-
| emption of a growing crop; nor does it
affect the rights of the purchaser at the
| foreclosure sale under Section 707 Of the
Code of Civil Procedure. This latter
question does not arise in this case, be-
cause Leary, the purchaser at such sale,
| is not claiming anything under that Sec
| ton. The matter in controversy here is
| the single question as to whether the
growing crop of a homestead is per Sc
exempt from execution.
"This homestead was created in 1879,
and consists of 264 acres of farming land.
| Subsequently it was considered good Sc
curity for loan Of ST., 900. 1t was sold
under foreclosure for $l3053, and it is ad-
mitted to be worth more than $4,000 at
| the present time.
lit would be more than a liberal con-
| struction OF the homestead law to hold
that the growing crops on such a
homestead have, ever since 1879. been so
| sheltered by the homestead privilege as
| to be beyond the reach of creditors. APP
| plying the doctrine of Horgan VS.. Amick,
above referred to. where the value of
| both the homestead and the crop was
| less than 5000, it is not difficult to reach
the conclusion that the growing crop in
| this case is subject to the execution in the
! hands of the defendant.
| LET the demurrer be sustained and
the restraining order be discharged"