(r) Duppa v. Mayo, 1 Wms. Saund. 277 c. n (f). A similar and very clear view of this subject is also taken by Lord St. Leonardssee Concise View of Law of V. & P. 75, ed. 1851.
(s) 5B.&C. (11 E. C. L. E.) 829.
(t) 4 M. & W. 343.
(u) 10 A. & E. (37 E. C. L. R.) 753.
1 In Evans v. Roberts (which was approved in Dunne v. Ferguson, 1 Hayes, Exch., 542, where is an able opinion by Joy, Ch. Baron), the case of Emmer-son v. Heelis, 2 Taunt. 38, was virtually overruled, and Waddington v. Bristow, 2 B. & P 452, endeavoured to be explained. These cases decided that a sale of growing turnips and hops was within the fourth section of the statute. In Rodwell v. Phillips, 9 M. & W. 501, Lord Abinger suggested that the difference appeared to be between annual productions raised by the labour of man, and the annual productions of nature, not referable to the industry of man, except at the period when they were first planted; which, together with the disapprobation expressed of Waddington v. Bristow, supra, would seem to determine that an annual crop is not within the fourth section of the statute; and it seems to be generally held, on this side of the Atlantic, that such a crop is personal property, and as such can be sold by the owner or taken in execution : Newcomb v. Rayner, 2 Johns. 430 n.; Whipple v. Foot, lb. 418; Stewart v. Doughty, 9 lb. 108; Austin v. Sawyer, 9 Cow. 39; Stambaugh v. Yeates, 2 Rawle, 161; Myers v. White, 1 lb. 356; Bank of Pennsylvania v. Wise, 3 Watts, 406; Penhallow v. Dwight, 7 Mass. 34; Cutler v. Pope, 13 Me.
377; Craddock v. Riddlesbarger, 2 Dana, 205; Brittain v. McKay, 1 Ired. 265; Green v. Armstrong, 1 Den. 556; though, if not severed, it would pass by a conveyance or devise of the land: Bank of Pennsylvania v. Wise, 3 Watts, 406; Sallade v. James, 6 Pa. St. 144; Bear v. Bitzer, 16 Pa. St. 175; Groff v. Levan, lb. 179; and in the last two cases it was suggested that the reason why a previous sale of the grain would defeat the right of a subsequent purchaser of the land was because such sale was an implied severence of the grain.
The weight of authority would also seem to determine that trees, sold as timber, and to be presently cut and delivered, or trees and plants growing in a nursery, to be presently transplanted, are also personal property: Anon , Ld. Raym. 182; Smith v. Surnam, supra; Erskine v. Plummer, 7 Me. 447; Miller v. Baker, 1 Metc. 27; Whitmarsh v. Walker, lb. 313; Claflin v. Carpenter, 4 lb. 580; Yale v. Seely, 15 Vt. 221. But when the property in the trees is not to pass until they be severed, or if time is to be allowed for them to reach maturity, it would seem that the sale is one of an interest in land, and not of a chattel: Putney v. Day, 6 N. H. 430; Green v. Armstrong, 1 Den. 550; Pierre-pont v. Barnard, 5 Barb. 364. Manure has been held to be part of the realty, whether heaped in a barnyard or spread upon the ground: Wetherbee v. Ellison, 19 Vt. 379.
It may be here remarked, that even if the contracts referred to do not fall within the fourth section of the statute, because not relating to an interest in land, they must necessarily fall within the seventeenth section, because they relate to chattels. Moreover, if the contract is an entire one, as for the sale of the realty with the crops growing upon it, a court has no right to apportion it; and if the sale of the realty be avoided by this statute, that of the personalty will also fall: Thayer v. Rock, 13 Wend. 53; Loomis v. Newhall, 15 Pick. 166.-R.
A verbal contract to pay for improvements on land, held adversely to the promisor, in consideration that the tenant would attorn to him and pay him rent for his unexpired term, is not within the statute: Cassill v. Collins, 23 Ala. 676. A sale of growing timber, with liberty to enter, cut, and carry it away, without limitation of time, is an interest in land within the Statute of Frauds: Buck v. Pickwell, 27 Vt. 157; Yeakle v. Jacob, 33 Pa. St. 376; M'Gregor v. Brown, 10 N. Y. 114; Harrell v. Miller, 35 Miss. 700; Hutchins v. King, 1 Wall. 53. A sale of standing trees, in contemplation of their immediate separation from the soil, is a constructive severance of them. It is distinguished from the case of a contract conferring an exclusive right to the land for a time, for the purpose of making a profit out of the growth upon it: Byassee v. Reese, 4 Metc. (Ky.) 372. Crops grown and ready to be cut are chattels, and will pass by parol: Bryant v. Crosby, 40 Me. 9; even before their maturity: Bricker v. Hughes, 4 Ind. 146; Sherry v. Picker, 10 lb. 375; Bull v. Griswold, 19 111. 631; Matlock v. Fry, 15 Ind. 483; Frank v. Harrington, 36 Barb. 415; Marshall v. Ferguson, 23 Cal. 65. A. agreed to sell and deliver to B. all the broom corn that should be raised in 1853, on twenty-five acres of easement of the right to enter the land for the purpose of harvesting and carrying them away is all that was intended to be granted *to the buyer. But with respect to grass, which, as being the natural produce of the land, is said to be not distinguishable from the land itself in legal contemplation until actual severance, the decision of Crosby v. Wadsworth appears to be still adhered to, viz., that the purchaser of a crop of mowing grass, unripe, and which he is to cut, takes an exclusive interest in the land before severance; and therefore the sale is a sale of an interest in land within the statute (x). So it has been held, that the sale of growing underwood to be cut by the purchaser confers an interest in land within the statute (y). The same has been held as to an agreement for the sale of growing fruit (z). But where the owner of trees growing on his land (but after two had been cut down) agrees with another while the rest are standing to sell him the timber, to be cut by the vendor, at so much per foot, this is a contract merely for the sale of goods (a). The timber was to be made a chattel for the seller (b). And, per Littledale, J., even if the contract were for the sale of the trees, with a specific liberty to the vendee to enter the land to cut them, this would not give him an in(x) Carrington v. Roots, 2 M. & W. 248.