URICK v. GUITRON (1936)

On the 11th day of May, 1935, in the city of Los Angeles, at the approximate hour of 10 o'clock a. m., the appellant herein, Valley Fruit & Produce Company, a corporation, third party claimant, purchased from the defendants, Felix Guitron and Benjamin Guitron, Jr., a certain quantity of Bermuda onions which they had grown upon land in Riverside county; the onions being then matured but not harvested. On the same day plaintiffs herein commenced an action in Riverside county against the defendants, in which action an attachment was issued, and by authority thereof the sheriff attached the crop of onions theretofore sold by defendants to appellant. Appellant, on May 13, 1935, duly filed its third party claim, and, on the hearing to determine the title of said attached property, the lower court found in favor of plaintiffs, holding that the sale was fraudulent as against the creditor of defendants; there having been no immediate transfer of possession of such property at the time of the sale.

The question is therefore presented as to whether or not the transfer of a crop after maturity, but while yet unharvested, is within the provision of Civil Code, § 3440, voiding transfers of personal property in so far as creditors are concerned where made by one having at the time of such transfer the possession or control thereof and not accompanied by an immediate, actual, and continued change of possession of the thing transferred.

It has long been settled that the transfer of a “growing” crop is not void even though not accompanied by an immediate, actual, and continued change of possession. See Bours v. Webster, 6 Cal. 660; Davis v. McFarlane, 37 Cal. 634, 99 Am. Dec. 340; Globe Grain & Milling Co. v. Drenth, 36 Cal.App. 156, 171 P. 821, 822.

Respondent vigorously contends that, since the crop of onions involved herein had matured prior to the transfer, and was therefore no longer “growing,” the foregoing decisions are not applicable, and that, after a crop has matured, any transfer thereof must be accompanied by an immediate, actual, and continued change of possession. While it is true that the crops involved in the cited cases were still growing when the transfers thereof were made, and therefore were properly referred to as “growing crops,” the holdings therein were not based upon a determination as to whether such crops were or were not “growing,” but upon the question as to whether or not they were capable of manual delivery; the holding being that, since such crops had not been removed from the land, they were not capable of manual delivery, and therefore not “made by a person having at the time the possession or control of the property” within the meaning of Civil Code, § 3440.

In Bours v. Webster, supra, it is stated that: “Crops, growing upon land, are not goods and chattels, within the meaning of the Statute of Frauds, and will pass by deed or conveyance, from the very necessity of the case, as they are not susceptible of manual delivery until harvested and reduced to actual possession.”

Again in Davis v. McFarlane, supra, 37 Cal. 634, on page 638 of the opinion, the court states that: “Although growing crops are chattels, and, as we have seen, will pass by verbal sale, yet they are not susceptible of manual delivery until harvested, and therefore, until harvested they are not ‘in the possession or under the control of the vendor,’ within the meaning of the statute.”

To the same effect is Globe Grain & Milling Co. v. Drenth, supra, wherein it is held that: “Growing crops are chattels not susceptible of manual delivery until harvested, and are not ‘in the possession or under the control of the vendor’ within the meaning of the statute requiring an immediate delivery and continued change of possession. O'Brien v. Ballou, 116 Cal. 318, 48 P. 130. To so construe the statute would make it an imperative duty on the part of the grower to abandon the possession of his farm to the vendee at the time of the sale, a proceeding the statute certainly does not contemplate.”

We are therefore of the opinion that no distinction can be made between a “growing crop” and a “matured crop” prior to harvest; the crop not being capable of manual delivery in either instance and therefore not in the possession or control of the grower within the meaning of the statute.

The judgment of the lower court is reversed.

SCOVEL, Justice pro tem.

We concur: BARNARD, P. J.; MARKS, J.