Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 58
58 COOK V. STEEL. [Tyler Term,
Opinion of the court.
tion which appellant caused to be issued on a judgment
which he had against Carmichael, and that the execution
was, at his request, levied on the cotton in controversy.
The extent of the incumbrance on the cotton is fixed by
the mortgage, and could have been readily ascertained
from the record, if there had been no actual notice, and
the value of the cotton, as shown by the judgment, is less
than the sum secured to be paid by the mortgage. The
provisions of the statute, which are omitted to be stated in
the mortgage, are not set up as a cause of action, nor is it
questioned by the motion, or otherwise denied, that the
supplies were obtained in good faith. The sale under
which appellant claims seems to have been made long after
the execution and registration of the mortgage; at least it
is not contended that it was antecedent to the mortgage,
and if appellant had any intervening equities, they should
have been disclosed, with the facts on which he intended
to rely, and not merely that he believes that he has a good
and lawful defense against the action. The mortgage is
believed to be valid without dependence on the statute.
(4 Kent's Comr., 200, 201.)
At common law, growing crops raised by annual labor
are personal property, and subject to the incidents belonging
to that kind of property, such as sale, execution, &c.,
and it has been held that such sales were not within the
statute of frauds, requiring agreements for the sale of land
to be in writing. Some nice distinctions have been made
between the natural products of the earth, as growing
trees, fruit, grass, &c., and products by planting and culture,
and which grow yearly and are raised by annual labor
and expense, called emblements. It is not necessary in
this case to examine these distinctions, nor give them a
general application, and none is intended. It is sufficient
for this case to say that the cotton had been planted before
the date of the contract, as shown by the recital in the
mortgage, and its growth towards maturity at the time of
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/66/ocr/: accessed February 21, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .