Sec. 103. Miscellaneous notes. A covenant in restraint of alienation is void. Miller v. Denny, 99 Ky. 53 (34 S. W. Rep. 1079). Under Iowa Code, § 1937, a husband or wife joining in a conveyance of land owned by the other is not "bound by the covenants of such conveyance, unless it is expressly so stated on the face thereof," Moore v. Graves, 97 Ia. 4 (65 N. W. Rep. 1008); but in Kansas where a husband and wife execute a joint deed they are both liable for breach of its covenants, Bolinger v. Brake, 4 Kan. App. 180 (45 Pac. Rep. 950). A covenant by a grantor for quiet enjoyment "against all and every person or persons lawfully claiming the whole or any part thereof, by, through, or under and no other .... will forever warrant and defend," is so uncertain that it cannot be remedied by judicial construction and will not sustain an action. Mississippi R. Logging Co. v. Wheelihan, 94 Wis. 96 (68 N. W. Rep. 878). See opinion of Pinney, J., for authorities to the contrary. .... CROPS AND EMBLEMENTS. EPITOME OF CASES. Sec. 104. Title to growing crops. In the absence of an express reservation, the sale of land with crops growing thereon carries the landlord's interest therein to the purchaser. Hudson v. Fuller, Tenn. (35 S. W. Rep. 575). The owner of real estate is presumed to own its products, including the annual crops; such presumption is only prima facie and may be rebutted by evidence. Elstad v. Northwestern El. Co., 6 N. Dak. 88 (69 N. W. Rep. 44). Growing crops planted by a life tenant are subject to gift by him during his lifetime, although not matured at his death. Shaffer v. Stevens, 143 Ind. 295 (42 N. E. Rep. 620). A purchaser of agricultural products, grown on land in the adverse possession of another, is not liable to account to the true owner of the land for the value of such products, even though he knew, at the time he bought them, of the occupant's want of title to Mor the land and who was the real owner of the land. gan v. Long, 73 Miss. 406 (19 So. Rep. 98; 55 Am. St. Rep. 541). One taking a lease from a defaulting mortgagor, without the concurrence of the mortgagee, acquires no greater interest in crops raised by him than the mortgagor would have had. Reed v. Swan, 133 Mo. 100 (34 S. W. Rep. 483). While growing crops are sometimes, and for some purposes, a part of the realty, as between a mortgagor of the land and mortgagee, the mortgagor is the owner of the crops growing thereon, free from any lien of the mortgagee, and with full power to dispose of or mortgage the same, until he is divested of possession of the land by foreclosure proceedings, either by a receiver, or under final decree. Simpson v. Ferguson, 112 Cal. 180 (44 Pac. Rep. 484; 53 Am. St. Rep. 201). Unmatured crops growing upon land belonging to the owner of the crops are to be regarded as part and parcel of the land. Bagley v. Columbus S. Ry. Co., 98 Ga. 626 (25 S. E. Rep. 638; 34 L. R. A. 286; 58 Am. St. Rep. 325). See opinion for interesting collation of conflicting authorities. Sec. 105. Miscellaneous cases. A condition in a mortgage of crops that if the mortgagor shall dispose of, remove or injure them, the mortgagee may take possession of them, is not violated by the subsequent execution of a mortgage thereon to another which becomes due at a later date. Minn. Rev. Stat. 1894, § 4145, applied. Donovan v. Sell, 64 Minn. 212 (66 N. W. Rep. 722). Sand. & H. Ark. Dig., §§ 4766, 4783, 4786, 4787, construed and applied-priority of laborer's lien over a mortgage on crops. Watson v: May, 62 Ark. 435 (35 S. W. Rep. 1108). Cal. Civ. Code, § 2955 et seq., providing the manner of mortgaging growing crops, is intended to be exclusive of other modes, and is a declaration of legislative intent that such property shall be regarded as a chattel. Simpson v. Ferguson, 112 Cal. 180 (41 Pac. Rep. 484; 53 Am. St. Rep. 201). Where one is in the lawful possession of a crop and has the right to retain it until it is divided, replevin is not the proper remedy to enforce the division. Mosely v. Cheatham, 62 Ark. 133 (34 S. W. Rep. 543). Under Ala. Code, § 3004, providing that the "right of trial to property shall include any person who holds a lien upon, or equitable title to, such property," a mortgagee of an unplanted crop, as soon as the crop comes into existence, may try his right to it at law, as though he had the legal title. Patapsco Guano Co. v. Ballard, 107 Ala. 710 (19 So. Rep. 777; 54 Am. St. Rep. 181). CURTESY AND DOWER. HARPER v. CLAYTON. (84 Md. 346.) Widow's unassigned right of dower - Power of court of equity to subject it to the payment of her debts. A widow's unassigned right of dower cannot be sold on execution, and without express statutory authority, in the absence of fraud or other grounds for equitable relief, a court of equity has no power to subject it to sale to pay her debts. FOWLER, J. Sec. 106. Statement of the case-Power of courts of equity to aid creditors. The plaintiffs below are judgment creditors of the defendant, who is the widow of the late John S. Clayton, and as such widow she is entitled to dower in the real estate of her late husband. But it appears that her dower has never been actually assigned or set off to her, and it would, therefore, follow that she has not, at common law, any interest or estate in the lands of her husband until such assignment has been made. "Previous to the assignment of dower, her interest is a mere chose in action, nothing but a right by appropriate proceedings to compel the assignment to be made." Freem. Ex'ns, § 185. So long, therefore, as the common law prevails, the unassigned dower right cannot be taken in execution at law. It is contended, however, and this contention appears to be the main ground upon which the plaintiffs ask the aid of a court of equity, that, the law affording them no relief, equity must necessarily do so. And although an interesting question of equity jurisdiction is here presented which has been examined by some of the most learned jurists both of England and this country, it would be impossible in the limits of this opinion to do more than refer to and discuss some of the leading cases. In the early cases in England the jurisdiction here contended for, to subject choses in action to the claims of creditors by a creditors' bill, was sustained, but generally upon the ground of fraud, trust, or for some other reason which it was conceded would entitle the creditor to invoke its aid. Thus, Taylor v. Jones, 2 Atk. 600, lays down the doctrine that where a debtor has, in fraud of his creditors, assigned to trustees certain choses in action in trust for himself for life, and then over to his wife and children, a court of equity will favorably hear the application of such creditors, and decree such trust estate to be sold for the payment of their debts. And this was held to be so notwithstanding such choses in action were not subject to levy and sale upon execution at law. Rex v. Marissal, 3 Atk. 192; Edgell v. Haywood, 3 Atk. 352; Horn v. Horn, Ambl. 79; Partridge v. Gopp, Ambl. 596; Smithier y. Lewis, 1 Vern, 398. But even in cases like that of Taylor v. Jones, supra, and the others just cited, which would perhaps be now generally conceded to be within the limits of equity jurisdiction because of the allegation and proof of fraud, it was subsequently held in England that creditors could get no relief in equity, because they had no legal right which equity could enforce. Dundas v. Dutens, 1 Ves. Jr. 196; Grogan v. Cooke, 2 Ball & B. 230. In the last cited Lord Manners quoted Lord Thurlow as having said: "The opinion in Horn v. Horn, is so anomalous and unfounded that forty such opinions would not satisfy me. It would be preposterous and absurd to set aside an agreement which, if set aside, leaves the stock in the name of the person where you could not touch it." And in Bayard v. Hoffman, 4 Johns Ch. 450, Chancellor Kent, after a most careful and elaborate examination of the English authorities, came to the conclusion that, while Lord Hardwicke had maintained the jurisdiction of equity thus to proceed against choses in action, it was afterwards denied and overthrown by both Lord Thurlow and Lord Eldon, although his own opinion, as expressed in Bayard v. Hoffman, supra, was that the "better reason is with the earlier authorities." But, notwithstanding this expression of opinion in the case just cited, the more recent this point in New York and some other states have cases upon vigorously announced and maintained the doctrine that, aside from statute, and in the absence of fraud or some element of trust, chancery has no jurisdiction to subject choses in action to the payment of creditors because there happens to be no remedy at law; and it would seem that the chancellor himself had adopted this view, as will appear by reference to his Commentaries (volume 4, p. 61), where he refers to the New York statute as authority for the statement that in that state a chose in action may be reached by process in chancery for the benefit of creditors. Sec. 107. Power of court of equity to sell a widow's unassigned right of dower to pay her debts-Authorities collated and reviewed. The cases relied upon by the plaintiff do not, we think, sustain their position. The first of those in point of time is the the case of Hamilton v. Mohun, 1 P. Wms. 122. But in that case there was no question of jurisdiction, as there is here, and it was very properly held, on a bill filed for an account by an heir at law against the widow as guardian, "that a court of equity, in taking the account, should allow to the widow one-third of the profits for her right of dower; and this, too, whether dower had or had not been actually assigned." The question of jurisdiction was not involved in Hamilton v. Mohun, and it is therefore not an authority here. The plaintiffs also cited and relied upon three New York cases,- Tompkins v. Fonda, 4 Paige, 448; Stewart v. McMartin, 5 Barb. 438; and Payne v. Becker, 87 N. Y. 153. But it is sufficient to say, in regard to all of those cases, that they appear to be based upon the provisions of the New York statute which was in force when they were respectively decided. That statute, in effect and in words, provided that courts of chancery should have power to decree satisfaction of a judgment at law out of "any money, property, or thing in action belonging to the defendant, whenever an execution against his property shall have been returned unsatisfied in whole or in part." The same observations may be made in regard to McMahon v. Gray, 150 Mass. 289 (22 N. E. Rep. 923; 15 Am. St. Rep. 202; 5 L. R. A. 748), and Boltz v. Stoltz, 41 Ohio St. 540. In each of the states just named there were statutes expressly giving chancery courts jurisdiction to |