University of Arkansas · System Division of Agriculture

NatAgLaw@uark.edu · (479) 575-7646

An Agricultural Law Research Article

Standing Crops: Movables or Immovables?

by

A. N. Yiannopoulos

Originally published in LOYOLA LAW REVIEW

17 LOY. L. REV. 323 (1970)

www.NationalAgLawCenter.org
 STANDING CROPS: MOVABLES OR IMMOVABLES?

A. N. Yiannopou/os*

According to Article 465 of the Louisiana Civil Code of 1870,

"standing crops and the fruits of trees not gathered" are
immovables in the sense that they are "part of the land to which
they are attached.'" Under this provision, and in accordance with
the rules of accession, 2 unharvested crops and unga1:hered fruits of
trees might be regarded as immovable property for all purposes and
as insusceptible of separate ownership in place. 3 Legislative and
judicial action, however, have resulted in the recognition that
standing crops and hanging fruits are not always to be treated as
immovables 4 nor necessarily as a part of the land to which they are
attached. 5 It is the purpose of this paper to determine the
circumstances in which crops and fruits of trees are regarded as
immovable property and those in which they are regarded as
movable property.
Louisiana courts have not been consistent in efforts at
classification of standing crops. In a number of cases, courts have
.. Professor of Law. Louisiana State University.
I. LA. CIVIL CODE art. 465 (I) (1870); LA CIVIL CODE art. 456 (1825); LA. CIVIL CODE
p. 96, art. 17 (1808); cf. FRENCH CIVIL CODE art. 520. GREEK CIVIL CODE arts. 948, 954;
B.G.B. § 94; A. YIANNOPOULOS, CIVIL LAW PROPERTY §§ 44,70,71 (1966).
2. See LA. CIVIL CODE arts. 504-519 (1870).
3. According to traditional civilian conceptions. followed by Louisiana courts during
the 19th century. the ownership of immovables is not susceptible of horizontal division. See
A. YIANNOPOULOS, CIVIL LAW PROPERTY § 46 (1966). Standing timber, however, whether
or not separated in ownership from the land on which it stands, is treated in Louisiana as a
distinct immovable for all purposes. See La. Acts 1904, no. 1881, now R.S. 9:1103 (1950);
Comment, The Sale of Standing Timber in Louisiana, 20 TuL. L. REv. 428 (1946). Dead
timber is movable. Gillespie v. W.A. Ransom Lumber Co., 132 F. Supp. II (E.D. La. 1955),
affd 234 F.2d 285 (5th Cir. 1956).
In Germany and in Greece, standing crops are regarded as inseparable component parts
of the ground and as insusceptible of separate real rights in place. By way of exception,
however, established by special legislation, standing crops may be pledged and may be seized
separately from the ground. See G. BALIS, GENERAL PRINCIPLES Of THE CIVIL LAW 508 (7th
ed. 1955) (in Greek); A. YIANNOPOULOS, CIVIL LAW PROPERTY §§ 18,70,71 (1966).
4. See, e.g., LA. CIVIL CODE art. 3217 (privileges on growing crops); LA. R.S. 9:4341
(1950) (pledge of standing crops); id. 9:5105 (lessee's crops not subject to the debts or
mortgages of the landowner recorded after the date of the date of the lease); Humble Pipe
Line Co. v. Burton Industries, Inc., 253 La. 166, 217 So.2d 188, 191 (1968): "We are
cognizant of the fact that under certain circumstances, as those contemplated by Article 465,
supra, crops are immovables" (emphasis added); SAUNDERS, LECTURES ON THE CIVIL CODE
OF LOUISIANA 155 (1925).
5. See Louisiana Farms Co. v. Yazoo & M.V.R. Co., 172 La. 519,132 So. 747 (1931);
Fallin v. J.J. Stovall & Sons, 141 La. 220, 74 So. 911 (1917), recognizing expressly the
possibility of separate ownership in standing crops.

323
324 LOYOLA LAW REVIEW [Vol. XVII

declared that standing crops are immovable property.' Thus, in

Minter v. Union Central Life Ins. Co., the Supreme Court relying
on Article 465( I) of the Civil Code declared that a growing crop of
cotton is "an immovable."7 In other cases, Rowever, courts have
declared that standing crops are movable property. Indicatively, in
Louisiana Farms Co. v. Yazoo & M. V. R. Co., the Supreme Court
declared that the "contention that standing crops are a part of the
land to which they are attached, and belong to the owner of the
land, is fundamentally unsound. It assumes as its predicate, that
growing crops are immovable, an assumption that is its own
refutation. "9 his submitted that these seemingly irreconciliable
decisions may be fully reconciled in the light of the facts and
circumstances involved in each case and on the basis of the doctrine
that growing crops are movables by anticipation for a number of
purposes.

MOBILIZATION BY ANTICIPATION

According to well settled French doctrine and jurisprudence

interpreting Article 520 of the Napoleonic Code, which
corresponds with Article 465 of the Louisiana Civil Code of 1870,
standing crops are, on principle, part of an immovable by nature. 10
Nevertheless, crops may be governed by rules applicable to
movables, because they are destined to become movable. For
certain purposes, standing crops are thus regarded as movables by
anticipation, and the law looks to future rather than present
status. II For example, standing crops are governed in France by the
rules applicable to movables with regard to the formalities of sale
and seizure. 12
The doctrine of mobilization by anticipation is implicitly
recognized in the Civil Code and in special legislation, and has been

6. See, e.g., Swift 8< Co. v. Bonvillain. 139 La. 558, 71 50.849 (1916); Dixon v.
Alford, 143 50.679 (La. App. 1st Cir. 1932); Dixon v. Watson, 143 50.683 (La. App. 1st
CiT. 1932). In the last two cases cited. the court held that Article 275(8) of the Code of
Practice, dealing with sequestration of movable property, was inapplicable to the
sequestration of standing crops. The problem is now moot, because Article 3571 of the
Louisiana Code of Civil Procedure does not distinguish between sequestration of movables
and that of immovables.
7. 180 La. 38, 156 So. 167. 169 (1934).
8. See, e.g., Pickens v. Webster. 31 La. Ann. 870 (\879); Rosata v. Cali, 4 So. 2d 54
(La. App. 1st Cir. 1941).
9. 172 La. 569, 134 So. 747. 748 (1931).
10. See 2 A[;BRY ET RAU, DROIT CIVIL FRANCAIS 21 (7th ed. Esmein 1961).
II. See, in general. FREJAVILLE, DEs ME[;BLES PAR ANTICIPAnON (Diss. Paris 1927).
12. See 3 PLANIOL ET RIPERT. TRAITE PRATlQ[;E DE DROIT CIVIL FRANCAIS 105 (2d ed.
Picard (952).
,

1970-71] STANDING CROPS 325

expressly adopted by Louisiana courts, although the consequences

of mobilization are not the same in France and in Louisiana. 13
Article 3217 of the Louisiana Civil Code of 1870, which has no
exact equivalent in the French Civil Code, regards growing crops as
movables to the extent that they may be burdened with a privilege.
This article declares that "the debts which are privileged on certain
movables, are the following: I. The appointments or salaries of the
overseer for the current year, on the crops of the year and the
proceeds thereof; debts due for necessary supplies furnished any
farm or plantation, and debts due for money actually advanced and
used for the purchase of necessary supplies and the payment of
necessary expenses for any farm or plantation on the crops of the
year and the proceeds thereof." The last sentence of the same
article makes it clear that these privileges are granted "on the
growing crop," which is thus regarded as a movable by
anticipation insofar as these privileges are concerned. 14
Mobilization by anticipation takes place in these circumstances by
operation of law, and for this reason, these privileges need not be
recorded to be effective against third persons. 15
Further, Section 4341, Title 9, of the Louisiana Revised
Statutes declares that a planter or farmer "may pledge or pa wn any
agricultural crop, either planted and growing or in contemplation
of being planted" under the conditions prescribed.·' Since pledge
and pawn are security devices applicable to movable property, 11
there should be no doubt that under this legislation the execution of
a pledge on growing crops constitutes a mobilization by
13. There is no distinction in Louisiana with regard to forms of seizure applicable to
movables and immovables. Moreover, a sale of growing crops by the owner of the ground is
the sale of immovable property and is subject to the rules of form and substance governing
transfers ofimmovable property. Minter v. Union Central Life Ins. Co., 180 La. 38, 156 So.
167 (1934).
14. In Swift lit Co. v. Bonvillain, 139 La. 558, 71 So. 849, 855 (1916), the court
declared that as Article 3217 "is by its terms confined in its application to 'debts which are
privileged on movables: and as 'standing crops' are immovables, it would seem to follow
that the privilege so conferred is intended to take effect only upon the severance of the crop
from the soil." Apparently, the court did not realize that, under this article, standing crops
are to be regarded as movables by anticipation quoad the privileges conferred. Cf Citizens
Bank v. Wiltz, 31 La. Ann. 244, 246 (1879): "The existence of a right on the growing crop is
a mobilization by anticipation, a gathering as it were in advance, rendering the crop movable
quoad the right acquired thereon."
15. See Purity Feed Mills Co. v. Moore, 152 La. 393,93 So. 196 (1922); City Bank &
Trust Co. v. Marksville Elevator Co., 221 So. 2d 853 (La. App. 3d Cir. 1969); Dantoni v.
Montebello, 19 La. App. 290, 140 So. 67 (1932).
16. See LA. R.S. 9:4341 (1950). See also id. 4342, 4343, 4522, 4523, 4524.
17. See LA. CIVIL CODE art. 3135 (1870): "A thing is said to be pawned when a
movable thing is given as security."
326 LOYOLA LA W REVIEW [VoL XVII

anticipation}S This method of mobilization, effected by juridical

act rather than by operation of law, is subject to the requirement of
recordation. Ii Still another example of anticipatory mobilization is
furnished by Section 5105, Title 9, of the Louisiana Revised
Statutes which declares that "the lessee's growing crops for the
current year cannot be held to pay an ordinary debt of the
hindowner, or any mortgage against the landowner recorded after
the date of the lease."2fI Obviously, the lessee's crops are regarded
as movables by anticipation, and, therefore, they are not liable for
the specified debts of the landowner. 21
Following French doctrine and jurisprudence, Louisiana
courts have for more than a century expounded the doctrine of
mobilization by anticipation. In Pickens v. Webster,22 the court
rationalized earlier decisions on the ground that the growing crop
belonging to a lessee is "a movable, or . . . an apparent
immovable mobilized by anticipation." And in the leading case of
Citizens Bank v. Wiltz,23 the court declared that "the immovability
of growing crop is in the nature of things temporary, for the crop
passes from.the state of a growing to that of a gathered one, from
an immovable to a movable. The existence of a right on the
growing crop is a mobilization by anticipation, a gathering as it
were in advance, rendering the crop movable quoad the right
acquired thereon." In the light of this decision, any right on
growing crop, by its ownership, pledge, or another right, renders the
crop movable insofar as the right is concerned.
Separate ownership of standing crops and ungathered fruits of
trees may derive from a variety of contractual relationships, as
leases of land, emphyteusis,25 or sales of standing crops.21 It may
18. See Citizens Bank v. Wiltz, 31 La. Ann. 244, 246 (1879) (pledge on growing crop
rend res it "pro hac vice a movable").
19. See LA. R.S. 9:4341 (1950); City Bank'" Trust Co. v. Marksville Elevator Co.,
221 So.2d 853 (La. App. 3d Cir. 1969).
20. See LA. R.S. 9:5105 (1950).
21. See Pickens v. Webster, 31 La. Ann. 870, 875 (1879) (lessee's crop is "a movable,
or . . . an apparent immovable mobilized by anticipation.").
22. 31 La. Ann. 870,875 (1879). See also Williamson v. Richardson, 31 La. Ann. 685
(1879); cf SAUNDERS, LECTURES ON THE CIVIL CODE OF LOUISIANA 154 (1925): "The crops
grown by the tenant . . . are not regarded as part of the land; they are regarded as the
personal property of the tenant and liable to his debts, and not liable to the debts of the
owner of the land except insofar as the tenant may be indebted to him."
23. 31 La. Ann. 244, 246 (1879).
24. See LA. R.S. 9:5105 (1950).
25. See LA. CIVIL CODE arts. 2779-2792 (1870).
26. See Minter v. Union Central Life Ins. Co., 180 La. 38, 156 So. 167 (1934).
1970-71] STANDING CROPS 327

also derive from real rights on the land of another, as usufruct 27 or

antichresis, %8 or even from the possession of land in good faith. %9
The owner of the crops or ungathered fruits may always assert his
rights against the owner of the land;38 but, by virtue of the public
records doctrine, he may assert his separate ownership against third
acquirers of the land only if his interest is previously recorded. 31 It
is only in this way that purchasers of standing crops as well as
lessees of land may be protected in case of transfer, mortgage, or
seizure of the land.
In the following discussion, the status of crops will be
considered in the light of a working assumption, namely, that
growing crops are immovable property unless they have been
mobilized by anticipation. Reference will be made specifically to
situations concerning: (1) transfer, mortgage, and seizure of lands;
(2) transfer, pledge, and seizure of growing crops; (3) lessee's crops;
and (4) crops of other persons.

TRANSFER, MORTGAGE, AND SEIZURE OF LANDS

The question of the status of crops and fruits of trees as part of

the land arises typically in cases involving transfer, mortgage, or
seizure of lands. In the absence of express provisions concerning
rights to crops and fruits of trees, interested parties have claimed
standing or even gathered crops as included in, or excluded from,
the transfer, mortgage, or seizure by virtue of Article 465(1). As to
gathered crops and fruits, however, the rule is clear: these are
movables rather than a part of the ground, and, accordingly, they
are not included by implication in a transfer, mortgage, or seizure
of the land. 3% But it has been argued that standing crops and
ungathered fruits of trees, as part of the immovable, should follow
the ownership of the ground in all cases. 33 This solution would leave
without protection lessees cultivating the ground, third possessors
27. See LA. CIVIL CODE art. 544 (1870).
28. Id. art. 3176.
29. Id. arts. 502, 3453.
30. See Flower & King v. S.S. Pl:arce & Son, 45 La. Ann. 853, 13 So. 150 (1893)
(lessee's right of ownership "perfectly good and valid" against the lessor even without
recordation).
31. See notes 56, 61 infra.
32. See Minter v. Union Central Life Ins. Co., 180 La. 38, 156 So. 167 (1934);
Alliance Trust Co. v. Geydan Bank, 162 La. 1062, III So. 421 (1927); Andrus v. His
Creditors,46 La. Ann. 1351, 16 So. 215 (1894); Sandel v. Douglass, 27 La. Ann. 628 (1875).
33. See Colligan v. Benoit, 13 La. App. 612, 128 So. 688 (1st Cir. 1930); Napper v.
Welch, 2 La. App. 256 (2d Cir. 1925); Adams v. Moulton, I McGloin 210 (La. 1880);
Williamson v. Richardson, 31 La. Ann. 685 (1879); Baird v. Brown, 28 La. Ann. 842 (1876);
Bludworth v. Hunter,9 Rob. 256 (La. 1844).
 328 LOYOLA LAW REVIEW [Vol. XVII

of the immovable property, laborers having a privilege on the

crops, and acquirers of standing crops by sale or other juridical act.
Louisiana courts, therefore, felt early the necessity for a restrictive
interpretation of Article 465(1) in order to avoid socially and
economically undesirable results.
In cases involving transfer of lands, as purchase at private or
public sale, Louisiana courts have held that standing crops and
ungathered fruits of trees are part of the ground and follow it,34
unless, of course, they belong to third persons 35 as movables by
anticipation.31 This is an application of the principle that no one
can transfer a greater right that he himself has as well as of the rule
that the transfer of immovable property does not include movables
located thereon. 3s Thus, when the ungathered crops and fruits of
trees do not belong to the owner of the ground, a transfer of the
land does not confer title to these crops and fruits.39
Like a sale or any other disposition of immovable property,
the establishment of a real mortgage extends to standing crops and
ungathered fruits of trees,40 unless, of course, they belong to a
person other than the mortgage debtor. 41 This is again an
application of the principle that no one can transfer a greater right
than he himself has as well as of the rule that standing crops
belonging to a person other than the landowner are movables by
anticipation. Whether the standing crops belong to the landowner

34. See Williamson v. Richardson, 31 La. Ann. 685 (1879); Baird v. Brown, 28 La.
Ann. 842 (1876); Bludworth v. Hunter, 9 Rob. 256 (La. 1844); Colligan v. Benoit, 13 La.
App. 612, 128 So. 688 (1st Cir. 1930); Napper v. Welch. 2 La. App. 256 (2d Cir. 1925); cf
Adams v. Moulton, 1 McGloin 210 (La. 1880); Deville v. Couvillon. 5 La. App. 519 (2d Cir.
1927). See also Humble Pipe Line Co. v. Burton Industries. Inc., 253 La. 166.217 So.2d
188, 191 (1968); "In the case of sale, unless reserved or except by contract or operation of
law. crops attached to the land at the time of the sale generally pass to the purchaser of the
land."
35. See Porche v. Bodin, 28 La. Ann. 761 (1876); Federal Land Bank v. Carpenter.
164 So. 487 (La. App. 2d Cir. 1935).
36. See Williamson v. Richardson. 31 La. Ann. 685 (1879); Pickens v. Webster. 31
La. Ann. 870 (\879); Citizen Bank v. Wiltz, 31 La. Ann. 244 (1879).
37. See LA. CIVIL CODE arts. 822. 2105 (1870).
38. See A. YIANNOPOULOS. CIVIL LAW PROPERTY § 57 (1966).
39. See note 35 supra.
40. See LA. CIVIL CODE art. 3310 (1870): "The conventional mortgage. when once
established on an immovable. includes all the improvements which it may afterwards
receive;" Townsend v. Payne, 42 La. Ann. 909, 8 So. 626 (1890). Of course. the mortgage
need not mention standing crops eo nomine; these crops. as a part of the land. are included in
the mortgage. Williamson v. Richardson, 31 La. Ann. 685 (\879).
41. Cf Porche v. Bodin. 28 La. Ann. 761 (1876); Federal Land Bank v. Carpenter.
164 So. 487 (La. App. 2d Cir. 1935); Vosburg v. Federal Land Bank. 172 So. 567 (La. App.
2d CiT. 1937).
\970-7\ ] STANDING CROPS 329

or to other persons is determined by application of the rules

governing acquisition of ownership. Thus, standing crops may
belong to a good faith possessor of the land or to a lessee
cultivating the land under agreement with the landowner. Upon
maturity of the debt, the mortgage creditor may foreclose and seize
the land along with the standing crops that belong to his debtor. 42
However, crops maturing and collected while the land is mortgaged
are freed of the mortgage;43 they may be seized and sold by general
creditors of the landowner who are under no obligation to account
to the mortgage creditor. U
In the case of a seizure of lands by general creditors or by
mortgage creditors of the landowner, standing crops and
ungathered fruits of trees are included in the seizure as a part of the
immovable only to the extent that they belong to the debtor. 45 This
is an application of the principle that the property of the debtor is
the common pledge of his creditors 48 as well as of the rule that
movables are not included in the seizure of lands. If the seizing
creditor holds a mortgage, his right extends to standing crops that
belong to the mortgage debtor as well as to standing crops that the
mortgage debtor has disposed of in violation of his obligation
under the mortgageY Moreover, in case the land has been
transferred to a third possessor, the mortgage creditor is entitled to
standing crops as of the time "notification of the order of seizure
was served on him."48 If the seizure of the land has been made by
42. See text at notes 45, 47
43. See Bludworth v. Hunter, 9 Rob. 256 (La. 1844); cf Skillman v. Lacy, 5 Mart.
(N.S.) 50 (La. 1826).
44. See Alliance Trust Co. v. Gueydan Bank. 162 La. 1062, III So. 421 (1927); cf
Minter v. Union Central Life Ins. Co., 180 La. 38, 156 So. 167 (1934).
45. See Flower & King v. 5.5. Pearce & Son. 45 La. Ann. 853. 13 So. 150 (1893); cf
Townsend v. Payne, 42 La. Ann. 909. 8 So. 626 (1890); Williamson v. Richardson. 31 La.
Ann. 685 (1879). Thus. the seizure does not include the crops that belong to a lessee or a third
possessor or the property. See Porche v. Bodin, 28 La. Ann. 761 (1876); Federal Land Bank
v. Carpenter. 164 So. 487 (La. App. 2d Cir. 1935).
46. See LA. CIVil CODE art. 3183 (1870).
47. See LA. CIVil CODE art. 3397 (1870): "[T]he debtor cannot sell, engage or
mortgage the same property to other persons. to the prejudice of the mortgage which is
already made to another creditor . . . . [Ilf the mortgaged thing goes out of the debtor's
hands, the creditor may follow it in whatever hands it may have passed . . . . See also LA.
R.S.9:5382 (1950): "The holder of a conventional mortgage shall have the same rights,
privileges. and actions as the mortgagor land owner to recover against any person who.
without the written consent of the mortgagee. buys, sells, cuts, removes, holds, disposes of,
changes the form of, or otherwise converts to the use of himself or another, any trees,
buildings, or other immovables by nature covered by the mortgage." Of course, crops that
the debtor has harvested or delivered to purchasers prior tothe foreclosure of the mortgage
are movables. See note 43 supra.
48. LA. CIVil CODE art. 3408 (1870).
 330 LOYOLA LA W REVIEW [Vol. XVII

general creditors of the landowner, a mortgage creditor may

intervene to secure his preference. 4' Article 466 of the Louisiana
Civil Code of 1870 declares that "the fruits of an immovable,
gathered or produced while it is under seizure, are considered as
making part thereof, and inure to the benefit of the person making
the seizure." For the purposes of this article, gathered crops and
fruits do not change status; they are still regarded as part of the
immovable and follow it to the extent that they belong to the
debtor.18 It ought to be noted, however, that by virtue of new
legislation the fruits of an immovable under seizure do not
necessarily inure to the benefit of the seizing creditor; today, they
are applied to the satisfaction of claims in accordance with the rules
governing priorities among creditors.$1

TRANSFER, PLEDGE, AND SEIZURE OF GROWING CROPS

The owner of growing crops, be he the landowner or another

person, may sell, $2 pledge, G3 or otherwise dispose of his interest. 14
Creditors of the owner of the growing crops may seize them
separately from the land to which they are attached.» Legislation
applicable to crop pledges declares that a pledge must be recorded
in order to be effective against third persons. 51 In the absence of
similar legislation applicable to transfers of growing crops,
however, a question may arise as to the requirement of recordation.
A proper application of the doctrine of mobilization by
anticipation ought to lead to the conclusion that recordation is not
49. See LA. CODE OF CIV. PROCEDURE arts. 1092,2335,2372,2374 (1960).
50. See Townsend v. Payne, 42 La. Ann. 909, 8 So. 626 (1890).
51. See LA. CODE OF CIv. PROCEDURE art. 1092, as amended by La. Acts, 1962, No.
92; id. art. 2292; id. art. 2299, as amended by La. Acts 1961, No. 23. See also id. art. 327
which declares that "the seizure of property by the sheriff effects the seizure of the fruits and
issues which is produces while under seizure. The sheriff shall collect all rents and revenue
produced by the property under seizure."
52. See Minter v. Union Central Life Ins. Co., 180 La. 38, 156 So. 167 (1934); Lewis
v. Klotz, 39 La. Ann. 259, I So. 439 (1877). Of course, a lessor may not pledge or otherwise
dispose of a lessee's crops. See Louisiana Farm Bureau C.G. Co-op Ass'n v. Clark, 160 La.
294, 107 So. 115 (1926); Coguenhem v. Himalaya Planting & Mfg. Co., 140 La. 476, 73 So.
301 (1916). Nor maya lessee dispose of his lessor's crops. See LA. R.S. 9:3204 (1950).
Moreov:;lr, a mortgage debtor may not dispose of standing crops to the prejudice of the
mortgage creditor. See note 47 sup"'.
53. See LA. R.S. 9:4341 (1950); Citizens Bank v. Wiltz, 31 La. Ann. 244 (1879).
54. Rosata v. Cali, 4 So. 2d 54 (La. App. 1st Cir. 1941).
55. See Fallin v. J.J. Stovall & Sons, 141 La. 220, 74 So. 911 (1917); Pickens v.
Webster, 31 La. Ann. 870 (1879); Colligan v. Benoit, 13 La. App. 612, 128 So. 688 (1st Cir.
1930). But cf Holmes v. Payne, 4 La. App. 345 (2d Cir. 1926) (cropper's interest may he
seized by his creditors after the crop is harvested and divided). For seizure of growing crops
along with the land, see note 45 supra.
56. See LA. R.S. 9:4341 (1950).
 STANDING CROPS 331

requiredY The Louisiana Supreme Court has held, however, that a

sale of growing crops by the landowner is the sale of immovable
property; therefore, it is effective against third persons from the
date of recordation. 58 Jt is submitted that this rule should not apply
to sales of growing crops made by persons other than the
landowner, because the interest of these persons is an interest in
movable property.

LESSEE'S CROPS

Louisiana courts have consistently held that, as between lessor

and lessee, crops raised by the lessee belong to him 59 as movables by
anticipation." Jt is a critical question, however, whether the lessee
may assert his ownership of standing crops against the creditors of
the landowner or against third acquirers of the land. In this respect,
Louisiana courts have held that the separate ownership ,of standing
crops may be asserted against creditors and transferees of the
landowner only if the lease is recorded. In Flower & King v. S.S.
Pearce & Son, II the Louisiana Supreme Court declared that it is "a
well-settled principle of our jurisprudence that an unrecorded lease
of real estate has no effect to third persons ~nd seizing creditors."
In this case the lessee lost his standing crops to a purchaser of the
property because his lease was unrecorded. '2 When the lease is
recorded, however, the lessee is allowed to assert his ownership of
the crops against both creditors of the landowner and purchasers of
57, This is the rule in France. See 3 PLANIOL ET RIPERT, TRAITE PRATIQUE DE DROIT
CIVILFRANCAIS \05 (2d ed, Picard 1952); cf Citizens Bank v. Wiltz. 31 lao Ann. 244 (1879).
quoting from the text of Marcade.
58. Minter v. Union Central life Ins. Co., 180 lao 38, 156 So, 167 (1934).
59. See lewis v. Klotz, 39 lao Ann. 259, I So. 539 (1887); Porche V. Bodin, 28 lao
Ann. 761 (1870); cf Sandel v. Douglass, 27 lao Ann. 628 (1875); Richardson V. Dinkgrave,
26 lao Ann. 632 (1874); Federal land Bank v, Carpenter, 164 So. 487 (la. App. 2d Cir.
1935). See also Flower", King V. S.S. Pearce '" Son, 45 lao 853, 13 So, 150, 152 (1893)
(lessee's right "perfectly good and valid" as to the landowner); In re Maux Bros .• 177 lao
997, 149 So. 886 (1933) ("The shares of the landowner and of the cultivator helong
absolutely and at all times to them respectively in the proportions fixed in the contract");
louisiana Farm Bureau CO. Co-Op Ass'n V. Clark, 160 lao 294, \07 So. 115 (1926). But
cf State V. Jacobs, 50 lao Ann. 447,23 So. 608 (1898) (larceny case; the court declared that
"a bale of cotton in the seed" is deemed to helong to the plantation owner hefore the share of
a laborer has been separated).
60. Pickens v, Webster, 31 lao Ann. 870 (1879). It follows that neither a lessor may
dispose of the lessee's crops nor a lessee may dispose of the lessor's crops. See note 52 supra.
61. 45 lao Ann, 853, 13 So. 150 (1893); accord: Napper V. Welch, 2 lao App. 256 (2d
Cir. 1925). See also Summers", Brannins V. Clark, 30 la, Ann. 436 (1878) (urban lease).
62. Flower'" King v, S.S. Pearce '" Son, 45 lao Ann. 853, 13 So, 150, 152 (1893) (the
right of the lessee "unavailing without registry in the manner prescrihed by law for
conveyances of real estate").
332 LOYOLA LA W REVIEW [Vol. XVI I

the land. n It is in these circumstances that courts declare that

standing crops are not a part of the land or that they are movables
by anticipation.
Section 5105, Title 9, of the Louisiana Revised Statutes
declares that "the lessee's crops for the current year cannot be held
to pay an ordinary debt of the landowner, or any mortgage against
the landowner recorded after the date of the lease."84 A literal
interpretation of the statute makes it clear that a lessee's growing
crops may not be held liable for an ordinary debt of the landowner,
whether that debt arose before or after the date of the lease. But
with respect to a mortgage debt, the statute declares simply that
growing crops may not be held liable for a mortgage debt of the
landowner that is recorded after the date of the lease~ An argument
a contrario may thus be made to the effect that a lessee's growing
crops are liable to pay a mortgage debt of the landowner that was
recorded before the date of the lease. This argument would be
clearly compatible with the general rules of the Civil Code
protecting the security of mortgage 65 and with the idea that the
landowner may not mobilize crops by anticipation to the prejudice
of mortgage creditors," but it would be contrary to the holding in
Porche v. Bodin. '7 Perhaps, the Legislature has sought to overrule
the Porche case by Act No. 100 of 1906 which is now Section 5105,
Title 9, of the Revised Statutes.
The statute does not require that the lease be recorded in order
to be effective against mortgage creditors or general creditors ofthe
landowner. Act No. 100 of 1906, the source provision, provided
expressly that the lease may be "recorded or unrecorded,"68 but
63. See Lewis v. Klotz, 39 La. Ann. 259, I So. 539 (1887); Porche v. Bodin, 28 La.
Ann. 761 (1876). See also the following cases in which the issue of recordation was not
raised: Louisiana Farms Co. v. Yazoo & M.V.R. Co .. 134 So. 747, 172 La. 569, (1931);
Pickens v. Webster, 31 La. Ann. 870 (1879); Sandel v. Douglass, 27 La. Ann. 628 (1875);
Richardson v. Dinkgarve, 26 La. Ann. 632 (1874); Colligan v. Benoit, 13 La. App. 612,128
So. 688 (1st Cir. 1930). In Deville v. Couvillon, 5 La. App. 519 (2nd Cir. 1927), the court
held the interests of mortgage creditors prime the interest of a lessee occupying the land
under a recorded lease when a pre-existing mortgage contains the pact de non alienando.
Today, the pact de non alienando is implied in every mortgage. LA. CODE OF CIV.
PROCEDURE art. 2701 (1960).
64. La. R.S. 9:5105 (1950).
65. See note 47 supra; Deville v. Couvillon. 5 La. App. 519 (2d Cir. 1927).
66. See note 52 supra.
67. 28 La. Ann. 761 (1876). See also Federal Land Bank v. Carpenter, 164 So. 487
(La. App. 2d Cir. 1935). In Deville v. Couvillon. 5 La. App. 519 (2d Cir. 1927). the Porche
case was distinguished on the ground that the crops had matured and were ready for
collection at the time of foreclosure.
68. See La. Acts 1906, No. 100.
1970-711 STANDING CROPS 333

these words were suppressed in 1950. Since the redactors of the

Revised Statutes did not have authority to change the laws,'8 and
since the statute does not require recordation, argument may be
made that none is needed. But, in the meanwhile, Act No.7 of 1950
was enacted, now Section 2721, Title 9, of the Revised Statutes,
which declares that "no sale, contract . . . surface lease . . . or
other instrument of writing relating to or affecting immovable
property shall be binding on or affect third persons or third parties
unless and until filed for registry."7o It would seem, therefore, that
the requirement of recordation ought to be read now in the text of
Section 5105, Title 9, of the Revised Statutes. This interpretation
would conform with Articles 2264 and 2266 of the Civil Code
which establish the public records doctrine and with jurisprudence
requiring recordation of all leases in order to be effective against
purchasers of the property. 71 Indeed, it would make little sense to
require that a lease be recorded in order to be effective against
purchasers and to dispense with this requirement when the lease is
asserted against general creditors or mortgage creditors of the
landowner.
The requirement that the lease be recorded in order to be
effective against third persons is established in favor of persons who
acquire interests in the land by reliance on public records. It should
have nothing to do with a person who causes damage to the crops of
a lessee. The lessee's interest in growing crops is property which is
protected under Article 2315 of the Civil Code1% and under Article
1, Section 2 of the Louisiana Constitution. 73 I n Andrepont v.
Acadia Drilling CO.,74 a tenant farmer sued for damages caused to
his crops by defendants' mineral operations. Plaintiff had raised
crops under a verbal lease over the same property. The Louisiana
Supreme Court, in an original hearing, affirmed a judgment
dismissing the suit on the ground that the farmer tenant could not
assert his separate ownership of the standing crops against the
defendants. Following pertinent legislation and well-settled
69. Cj. Newson v. Caldwell &: McCann, 51 So. 2d 393 (La. App. 1st Cir. 1951); LA.
R.S. I: 16: "The Louisiana Revised Statutes of 1950 shall be construed as continuations of
and as substitutes of the laws or parts of the laws which are revised and consolidated
therein."
70. See LA. R.S. 9:2721 (1950).
71. See text at note 61 supra.
72. Cj. Louisiana Farms Co. v. Yazoo &: M.V.R. Co., 134 So. 747, 172 La. 569
(1931); Miller v. Texas &: P. Ry. Co., 148 La. 936, 88 So. 123 (~921).
73. See LA. CONST. art. I, § 2 (1921); R.S. 19:21 (1950)~ Humble Pipe Lines Co. v.
Burton Industries, Inc. 253 La. 166,217 So.2d 188 (1968).
74. 255 La. 347,231 So.2d 347 (1969).
334 LO YOLA LA W REV]EW [Vol. XVII

jurisprudence, the Court declared that a lease, in order to be

effective against third persons, must be recorded. In the absence of
recordation, the Court reasoned, standing crops are regarded as
movables in the relations between tenant and landlord and as part
of the immovable under Article 465 of the Civil Code insofar as
third persons are concerned. Since the farmer tenant did not have
an ownership that could be asserted against the defendants, his
action should be dismissed. On rehearing, the Court held that
plaintiff could recover under a theory of stipUlation pour Dutroi,
namely, on the ground that the mineral lease between defendants
and landowners contained a provision making defendants liable for
the damage to the crops. The Court pointed out that plaintiff did
not assert "secret claims or equities" unknown to defendants and
that defendants were not third persons protected by the laws of
reigstry insofar as plaintiffs claim is concerned.
The final disposition of the case rests on the narrow ground
that the separate ownership of standing crops, arising under the
terms of a lease, may be asserted against a third person tortfeasor
who has made a stipulation in favor of the lessee. It would seem,
however, that a tortfeasor should be also responsible to a lessee
under Article 2315 of the Civil Code, even in the absence of any
stipulation. Be that as it may, the final disposition of the case has
nothing to do with the classification of standing crops as movable
or immovable property. In this respect, the original opinion
remains undisturbed and stands for three significant propositions
of property law: 1. Standing crops belonging to a lessee, whether
under a recorded or unrecorded lease are movable property; 2. This
separate ownership of movable property may be asserted against
the landlord always; it may be asserted against third persons
protected by the public records doctrine, that is, persons other than
tortfeasors, only if the lease is recorded; and 3. If the lease is
unrecorded, third persons (other than tortfeasors) are entitled to
regard the crops as part of the immovable property under Article
465 of the Civil Code. .iiIl~

CROPS OF OTHER PERSONS

It is not only lessees who may own standing crops on the land
of another; good faith possessors, purchasers of standing crops,
and persons having a contractual or real right may own crops on
1970-71) STANDING CROPS 335

the land of another. 75 It would seem that to the extent that the
separate ownership of these persons derives from a juridical act
made by the owner, this act must be recorded in order to affect
third persons. 1' If, on the other hand, separate ownership of
growing crops arises from acts of possession recordation is not
required. In all cases, the interests of these persons ought to be
classified as an interest in movable property by application of the
doctrine of mobilization by anticipation.

CONCLUSION

The precepts of the Louisiana Civil Code of 1870 have

undergone changes which seem to defy classification of standing
crops and unharvested fruits of trees as either movables or
immovables for all purposes. According to the letter of Article
465(1) of the Code standing crops and ungathered fruits of trees are
immovables as a part of the ground. Louisiana courts, however,
and the Legislature, thought it necessary and convenient to
recognize the possibility of separate ownership of standing crops,
and rights of creditors to seize and sell these crops separately from
the ground. This means that standing crops, though in principle are
regarded as a part of the ground, are susceptible of real rights
separate from those existing on the soil, and may, for certain
purposes, be treated as movables by anticipation. They are part of
the land and follow it in case of transfer, mortgage, or seizure only
when they have not been mobilized by anticipation. Thus, today,
reasoning a priori from the premise that crops are a part of the
ground would be grossly misleading. Instead, consideration of
special rules applicable to growing crops, rather than conceptual
generalization, is the accurate method of analysis.
75. See text at notes 24-30 supra.
76. See LA. CIVIL CODE arts. 2264, 2266 (1870); LA. R.S. 9:2721 (1950).