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Statement of case.

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HARMON T. HARRIS, Appellant, v. David H. Frink et al.,
24

Respondents.
6295
€296 One who enters upon the lands of another and puts in crops under a parol

license and a parol agreement that he shall have the crops raised by
him, is entitled to the crops, and, in case he is expelled from the land
and the crops are converted by the owner or his agent, can maintain an

action for such conversion. (GROVER, J., dissenting.)
The expenditure of money and labor under and induced by the agreement

is a good consideration therefor.
Where, under a parol contract for the sale of land, the vendee, with the

consent of the vendor, in pursuance of the terms of the contract, enters
into possession and puts in crops, the invalidity of the contract to sell
and convey does not affect the vendee's title to the crops, and if the
vendor refuses to perform and ejects the vendee, the title of the
latter to the crops is not thereby divested. In such case, the crops, as
between the parties, are not a part of the realty, but chattels. (GROVER,

J., dissenting.)
The statute of frauds cannot be invoked by the party who refuses to per-

form, as against one not in default, for the purpose of invalidating that
part of the contract which has been executed, and the latter cannot be
compelled to relinquish any benefit he has acquired from its partial per-

formance.
Although a vendee, by a partial performance of a parol contract of pur-

chase of lands, may have become entitled to a specific performance in
equity, if, after a refusal of the vendor to perform, and ejectment of the
vendee, an agent of the vendor converts the crops put in by the vendee
while in possession, in an action against the agent for such conversion,
he cannot set up the vendee's equitable title for the purpose of depriving

the latter of his property in the crops.
Where a vendee, under a parol contract of purchase, enters upon land with

the permission of the vendor, and under an agreement that he may
occupy and work it until the vendor is prepared to convey, he is a ten-
ant at will, and, as such, is entitled to the emblements, unless he has
made default in his contract or committed waste, or, in some other man-
ner, terminated the tenancy by his own wrongful act. (ALLEN and
GROVER, JJ., dissenting.)

(Argued February 22, 1872; decided March 26, 1872.)

Appeal from judgment of the General Term of the Supreme court in the eighth judicial district, entered upon an order denying motion to set aside a nousuit and for a new trial. (Reported below, 2 Lansing, 35.)

Opinion of the Court, per RAPALLO, J.

The action was to recover possession of a quantity of oats raised by plaintiff upon land of Charles W. Frink, for whom defendants were agents, of which land plaintiff had possession under a parol agreement to purchase. Plaintiff was nonsuited upon the opening of his counsel to the jury. The allegations in the opening are set forth in the opinion. Exceptions were ordered to be heard at first instance at General Term.

Thomas M. Webster for the appellant. Plaintiff was a tenant at will. (Jackson v. Moncrief, 5 Wend., 26; Jackson v. Miller, 7 Cow., 747; Lowry v. Tow, 3 Bar., Ch., 407; Wright v. Moore, 21 Wend., 231; Suffern v. Townsend, 9. J., 35; Howard v. Shaw, M. & W., 118; Warring v. King, M. & W., 571; Peckhar v. Leary, 6 Duer, 498; Burns v. Bryant, 31 N. Y., 453.) As such, he was entitled to the emblements. (Chitty on Con., 325; Story on Con., $ 956; 2 Blackstone, 258.) The crops being put in with consent of owner, defendant was entitled to them. (Like v. McInstry, 41 Bar., 186; Bennett v. Scutt, 18 Bar.; Pierpont v. Barnard, 2 Seld., 279; Ferrick v. K'em, 2 Am. L. C., 682.)

S. Parsons for the respondents. The verbal contract was so far consummated as to take the case out of the statute of frauds. (8 Paige, 600; 5 Wend., 638; 26 id., 238; 41 Bar., 619, 635; Fry on Spec. Per., 258.) If plaintiff was entitled to specific performance he was equitable owner. (3 Bar. Ch.,

40 Bar., 537.) Plaintiff was not, in any sense, a tenant. (7 Bar., 74; 6 J., 46; 25 Bar., 243; 31 id., 286.) Plaintiff having been turned out of possession cannot maintain replevin. (8 Cow., 220; 3 Den., 79; 34 N. Y., 363.) At law, contract was void, and plaintiff had no title to the land or the crops. (8 Wen., 584; 2 Den., 174; 6 Bar., 370; 1 Bar. Ch., 613.)

407;

Rapallo, J. The crop of oats in controversy was alleged, in the opening of the plaintiff's counsel, to have been sowed by the plaintiff while in possession of the land under a parol

SICKELS-VOL. IV. 4

Opinion of the Court, per RAPALLO, J.

contract of purchase. It was also offered to be shown that the crop was raised with the consent of the vendor, it having been a part of the agreement that the plaintiff should go into immediate possession of the farm, and work it until the defendants, who were the agents of the vendor, should be ready to carry out the agreement of sale; that the defendants assisted the plaintiff in putting in the crop, receiving pay from him for their work as hired men by the day; that afterward, in the month of May, the defendants expelled the plaintiff from the farm and repossessed themselves of it, and the vendor refused to convey pursuant to the agreement; that, when the crop was ripe, the plaintiff commenced harvesting it, but was driven off by the defendants, who took possession of the oats and harvested them. The plaintiff also offered to prove that the defendants had admitted that the crop belonged to him. The judge, at the trial, nonsuited the plaintiff on this opening, and exception was duly taken.

No question appears to have been made as to the authority of the defendants to represent and act for the vendor, who was their brother; but the nonsuit appears to have been granted and sustained at General Term on the ground that the crop was part of the realty, and that the plaintiff, having no legal title to the land, could have none to the crop;

that he was not a tenant, for the reason that no action would lie against him for use and occupation; and further, that having been ejected and kept out of possession of the land, he could not maintain any action for taking the crop when he was out of possession.

The contract of sale, not being in writing, was void by the statute of frauds; but the plaintiff's possession under it was lawful, so long as he made no default. He was in possession under a parol license from the owner to occupy ard work the farm until a conveyance should be executed pursuant to the agreement of sale. The invalidity of that agreement enabled the vendor to revoke the license at any time. It did not vest in the plaintiff the title to the land, but does it necessarily follow that he acquired no title to

Opinion of the Court, per RAPALLO, J.

inj

the crop which he had sown in reliance upon the owner's permission to occupy and work the farm ? Under some circumstances a growing crop is part of the 'realty and passes with it; but in many cases it is treated as a chattel. It may be owned by one person, while the title to the land is wholly in another, and this result may be brought about either by operation of law or by express contract. When planted by the owner of the soil, it constitutes in general part of the realty, and will pass to the vendee by a conveyance of the land ; but the owner of the soil may sell a crop to be cut without conveying any interest in the land, and the purchaser will acquire title to it as a chattel, even though not fit for harvest at the time of the sale. (Evans v. Roberts, 5 B. &. C., 829; Jones v. Flint, 10 A. & E., 753; Salisbury v. Matthews, 4 M. & W., 343; Craddock v. Riddlesbarger, 2 Dana, 206; Newcomb v. Ramer, 2 J. R., 421, note a; Austin v. Sawyer, 9 Cow., 39, 42, 43.) So if a lessor covenants with a lessee for years that he shall have the emblements, the property in the corn is well transferred, though it be not severed during the term. (Hobart, 175.)

And it is not necessary to the validity of an agreement by the owner of the soil, whereby another acquires an interest in the crops, that the relation of landlord and tenant should exist between them. An agreement to allow one to work land on shares for a single crop is no lease of the land; but the parties to such an agreement become tenants in common of the crop. They acquire a joint property in the growing crop, and may unite in an action of trespass de bonis for cutting and carrying it away (Foote v. Litchfield, 3 Johns., 216, 221; Moulton v. Robinson, 7 Foster, 550); while in such a case the owner of the land alone, can bring trespass for breaking the close. (Cro. Eliz., 143; 8 Johns., 151.)

So, where the owner of land agreed by parol that one Hatch might use it so long as would be sufficient to compensate him for clearing it, and Hatch planted a crop of wheat, which was levied upon in December as wheat in the ground, upon an execution against Hatch, the occupant, it was held

Opinion of the Court, per RAPALLO, J.

that the wheat was a chattel, and the levy good and sufficient to authorize the sheriff to harvest the wheat in the following August. (Whipple v. Foot, 2 Johns. R., 418.)

In Green v. Armstrong (1 Denio, 554, 556) numerous cases are cited showing that growing crops, which are the produce of manual labor and cultivation, may be conveyed by verbal contract as goods and chattels and sold on execution, and that trover may be maintained for them against one in possession of the land. (Dunne v. Ferguson, 1 Hayes, 542; see, also, Austin v. Sawyer, 9 Cow., 39, 42.) And they may be mortgaged by one out of possession of the premises. (Fryv. Miller, 45 Penn. St. R., 441; Stewart v. Doughty, 9 Johns., 108.)

Not crops only, but other things attached to the realty by one not owning the land, but with the consent of such owner, are frequently treated as chattels. (Lancaster v. Eve, 5 C. B., N. S., 727; Dame v. Dame, 38 N. H., 429, and authorities cited ; Smith v. Benson, 1 Hill, 176; Russell v. Richards, 10 Maine, 429; 35 N. H., 480; 27 Penn. St., 291.) And buildings erected with the consent of the owner of the land by one in possession under a parol contract of sale, have been held to be the personal property of the party erecting them. (Yates v. Mullin, 23 Ind., 562.) Where a chattel has been annexed to another's freehold, but may, without injury to the freehold, be severed, it is not necessarily to be inferred from the annexation that such chattel becomes the property of the freeholder. Whether it does so or not may be a question on the evidence, and the jury may infer, from circumstances, an agreement that the owner of the chattel should have liberty to take it away. (Wood v. Hewett, 8 Adol. & El., N. S., 913.)

From the verbal agreement set forth in the opening, that the plaintiff might work the land, in connection with the fact that the crop was sown with the consent and assistance of the defendants, who were the agents of the owner of the land, and that they were paid for their services by the plaintiff, the jury might infer an agreement that the crop thus sown should belong to the plaintiff. If such was the agree

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