This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Growing trees, other than trees in a nursery, are held in most jurisdictions to be realty. Accordingly a contract for the sale of growing trees, as such, to be removed by the vendee is within this clause of the statute.1 So a contract for the sale of growing wild grass is within the statute.2
1 Towson v. Smith, 13 App. D. C. 48; Smith v. Price, 39 111. 28; 89 Am. Dec. 284; Aldrich v. Husband, 131 Mass. 480; Noble v. Bosworth, 19 Pick. (Mass.) 314; Connor v. Coffin, 22 N. H. 538; Bond v. Coke, 71 N. C. 97.
2 Bostwick v. Leach, 3 Day (Conn.) 476; Brown v. Roland, 11 Tex. Civ. App. 648; 33 S. W. 273.
3 Long v. White, 42 O. S. 59. To the same effect, see Rogers v. Cox, 96 Ind. 157; 49 Am. Rep. 152; Key-son v. School District, 35 N. H. 477. The case of Meyers v. Schemp, 67 111. 469, in which a contract for the sale of the ruins of a burned building was held within the statute, has been treated as hopelessly contradictory to the above cases. It seems in the latter case that vendee was to remove the property sold. Whether the court was correct in holding such articles as scattered brick to be realty, the question of who was to sever or remove the property sold is the point of distinction between the two classes of cases.
4 See Sec. 655.
5McCraken v. Hall, 7 Ind. 30; South Baltimore Co. v. Muhlbach, 69 Md. 395; 1 L. R. A. 507; 16 Atl. 117.
6 Broaddus v. Smith, 121 Ala. 335; 77 Am. St. Rep. 61; 26 So. 34.
Some American courts follow the rule which, after much, vacillation, was finally adopted by the English courts,3 that if the parties in contracting contemplate the sale of growing trees solely as chattels and do not intend that they shall remain attached to the realty for an indefinite or unreasonable time, and do not intend that they shall derive a benefit from allowing them to remain attached to the realty, the contract is not within this clause of the statue.4
Some jurisdictions hold that if the contract for the sale of growing trees contemplates an immediate severance of them from the soil, they are to be treated as personalty and hence not within this clause of the statute,5 while if they are to be removed at the discretion of the vendee they are realty, and within the statute.6 If the contract requires the vendor to sever and deliver the trees, they are treated as personalty and such contract is not, therefore, within this clause of the statute.7 If a valid written contract is entered into between A, the owner of realty, and B, whereby B acquires the right to sever and remove certain standing timber, such timber is so far to be regarded as personalty that a contract between B and X whereby B agrees to give X a lien on such timber for advances to be made by X to B is not within this section of the statute.8
1 Alabama Mineral Land Co. v. Jackson, 121 Ala. 172; 77 Am. St. Rep. 46; 25 So. 709; Garner v. Ma-honey, 115 la. 356; 88 X. W. 828; Wiggins v. Jackson (Ky.), 73 S. W. 779; Broussard v. Verret, 43 La. Ann. 929; 9 So. 905; White v. King, 87 Mich. 107; 49 N. W. 518; Kileen v. Kennedy, - Minn. -; 97 N. W. 126; Walton v. Lowery, 74 Miss. 484; 21 So. 243; Nelson v. Lawson, 71 Miss. 819; 15 So. 798; Harrell v. Miller, 35 Miss. 700; 72 Am. Dec. 154; Kingsley v. Holbrook, 45 N. H. 313; 86 Am. Dec. 173; Putney v. Daly, 6 X. H. 430; 25 Am. Dec. 470; Slocum v. Seymour, 36 N. J. L. 138; 13 Am. Rep. 432; Drake v. Howell, 133 X. C. 162; 45 S. E. 539; Clark v. Guest, 54 O. S. 298; 43 N. E. 862; Hirth v. Graham, 50 O. S. 57; 40 Am. St. Rep. 641; 19 L. R. A. 721; 33 X. E. 90; Fluharty v. Mills, 49 W. Va. 446; 38 S. E. 521; Seymour v. Cushway, 100 Wis. 580; 69 Am. St. Rep. 957; 76 N. W.
2 Kirkeby v. Erickson, - Minn. -; 96 X. W. 705.
3Lavery v. Pursell, L. R. 39 Ch. Div. 508; Marshall v. Green, L. R. 1 C. P. Div. 35.
4 Bostwick v. Leach, 3 Day (Conn.) 476; Cain v. McGuire, 13 B. Mon. (Ky.) 340; Byasse v. Reese, 4 Met. (Ky.) 372; 83 Am. Dec. 481; Tilford v. Dotson, 106 Ky. 755; 51 S. W. 583; Cutler v. Pope, 13 Me. 377; Leonard v. Medford, 85 Md. 666; 37 L. R. A. 449; 37 Atl. 365; Smith v. Bryan, 5 Md. 141; 59 Am. Dec. 104; Nettleton v. Sikes, 8 Met. (Mass.) 34; Claflin v. Carpenter, 4 Met. (Mass.) 580; 38 Am. Dec. 381.
5 Robbins v. Farwell, 193 Pa. St. 37; 44 Atl. 260; McClintock's Appeal, 71 Pa. St. 365.
6Pattison's Appeal, 61 Pa. St.
A contract for the sale of such growing crops as are held to be personalty is not within this clause of the statute9 nor is an oral reservation of them.10 Thus a contract for the sale of timothy seed is not within the statute.11 In West Virginia growing wheat is treated as realty within the meaning of the statute of frauds.12