This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
1 Howe v. Batchelder, 49 N. H. 204; Kingsley v. Holbrook, 45 N. H. 313; Putney v. Day, 6 N. H. 430.
2 Green v. Armstrong, 1 Denio 550; Warren v. Leland, 2 Barb. 613. See Bank of Lansingburgh v. Crary, 1 Barb. 542. And the Court of Appeals of that State have gone so far as to hold that poles used necessarily in cultivating hops, which were taken down for the purpose of gathering the crop and piled in the yard, to be replaced in the season of hop raising, were a part of the real estate. Bishop v. Bishop, 1 Kernan 123. And see Frank v. Harrington, 36 Barb. 415.
3 Slocum v. Seymour, 36 N. J. L. 138. See Westbrook v. Eager, 1 Harr. 81; Thompson v. Tilton, 34 N. J. Eq. 306.
4 Owens v. Lewis, 46 Ind. 488; Armstrong v. Lawson, 73 Ind. 498. And see Kluse v. Sparks, 36 N. E. Rep. (Ind.) 914.
5 Vulicevich v. Skinner, 77 Cal. 239.
6 Carson v. Browder, 2 B. J. Lea (Tenn.) 701. And see Powers v Clarkson, 17 Kansas 218.
7 Smock v. Smock. 37 Mo. App. 56.
8 Hirth v. Graham, 50 Ohio St. 57.
§ 257 a. In most of those States which have extended the validity of the oral contract in passing the title before severance to sales of the annual produce of land, the question whether the oral contract would be in like manner valid in the case of natural growth has not been decided. In those States where it has been decided, the results are conflicting; the Supreme Court of New York, on the one hand, holding that the oral contract of sale in the case of natural growth is not effectual to pass the title before severance,3 and the courts of Yermont and Pennsylvania, on the other hand, manifesting a disposition to treat such contracts as effectual for that purpose.4 There is an evident uncertainty in the dealing of the courts with this subject, from which there appears to be no relief but by keeping steadily in view the question whether or not the contract of purchase involves, either by express stipulation or by fair implication from the circumstances, an agreement that the buyer shall have the right to occupy or enter upon the land during a definite or indefinite time after the bargain. Where such an agreement makes part of the transaction, it seems clear that an interest in land is contracted for and agreed to be given.1 But where, as in Marshall v. Green,2 there is no agreement that the goods shall remain on the vendor's land, the vendee's right to come in and take away what he has bought not depending upon any contract or agreement, but being a mere incident of his purchase arising by implication of law, and not subject to revocation by the owner of the land, the contract is for the sale, not of land, but of goods, and this independently of the nature of the growth sold.
1 Buck v. Pickwell, 27 Vt. 157. See Daniels v. Bailey, 43 Wisc. 566: Lillie v. Dunbar, 62 Wisc. 198.
2 Sterling v. Baldwin, 42 Vt. 306; and see Fitch v. Burk, 38 Vt. 687. 3 Lawrence v. Smith, 27 How. Pr. 327; Wood v. Shultis, 4 Hun 309; and see Killmore v. Howlett, 48 N. Y. 569, per Gray, C. Dicta to the same effect in Slocum v. Seymour, 36 N. J. L. 138; Owens v. Lewis, 46 Ind. 488.
4 See cases cited in note to § 257. Also McClintock's Appeal, 71 Pa. St. 365.
§ 258. The impression appears to have prevailed at one time that shares in incorporated or joint-stock companies, whose profit, and the consequent value of the shares held by the several stockholders, were derived from the use and ownership of real property, were themselves to be deemed an interest in or concerning land, so as not to be capable of purchase and sale without a memorandum in writing, as required by the fourth section of the Statute of Frauds. The doctrine is stated with some confidence by Mr. Roberts, at least as applied to shares in canal navigations and all species of tolls.3 And, in part upon his authority, it was determined in an early case in Connecticut that shares in a turnpike company which had power by its charter to make and maintain a road and collect a toll thereon were real estate, and were not subject to testamentary disposition by a testator not qualified to devise real estate, notwithstanding that their right of taking toll was limited to the reimbursement of expenses and interest.1 These opinions, however, are founded principally on the case of Townsend v. Ash,2 where Lord Hardwicke held shares in the New River Corporation to be real estate; and that case has been since explained in the important decision of Bligh v. Brent, in the Court of Exchequer,3 as proceeding on the ground that there the individual corporators owned the property, and the corporation only had the management of it. In a later case in the same court, Bligh v. Brent has been affirmed and the law finally settled on this point. The opinion of Martin, B., is very clear and satisfactory. After remarking that all the great railway companies, canal companies, and dock companies possessed land to a very great extent and value, and that land or real property was the main substratum of their joint-stock or partnership property, and their profits directly obtained from its use, he says: "The shareholder has only the right to receive the dividends payable on his share, that is, a right to his just proportion of the profits arising from the employment of the joint stock, consisting indeed partly of land; but whilst he holds his share he has no interest or separate right to the land, or any part of it. He is, indeed, interested in the employment of it; but he cannot proceed against it directly for anything which is due to him, or make any part of it his own for the purpose of satisfying any demand which he may have as shareholder. He is not in the situation of a mortgagee, who has a direct interest in the land; or of a joint tenant or tenant in common, who may make a part of it his own in severalty. Upon a dissolution or determination of the joint concern, he may possibly, though not very probably, become the owner of a part or share in the land; but if he does, it is not by virtue of any term in the partnership agreement [or act of incorporation], but upon a new transaction whereby the parties to the joint concern may, by virtue of a new contract, become separate owners of separate shares in the land belonging to it. Upon his death nothing descends to his heir; all goes to his personal representative, whether the land be held for years or in fee-simple, and his representative acquires no interest in the land different from what he himself had. . . . Land is merely a part of the joint-stock capital, and the real substantial interest of the shareholder and that which the share represents is the participation in, and right to participate in, the profits."1 Upon this case and those which are referred to in the opinions of the judges, it must be considered as now settled that shares in companies owning land are not necessarily themselves interests in land, whether the companies be incorporated or joint-stock, or whether they be for mining, railway, canal, banking, or any other purpose.3 § 259. Where land is owned by a partnership, each partner, of course, is entitled to his proper share in it. And here must be remarked an important exception (for so it seems we are forced to regard it) to the operation of the statute as it affects interests in land. Where two men are found jointly occupying a piece of land, incurring equal expenditures upon it and enjoying equal profit from it, the relation which from such facts would be presumed to be existing between them is that of joint tenancy, and, as incident to that joint tenancy, upon the death of either the whole would go to the other by right of survivorship. And naturally we should say that any agreement by which the course of the estate in the event of the death would be altered, must be in writing as affecting the title to real estate. But when the parties are really partners, and the land has been brought into and actually held and used by the partnership for partnership purposes, the courts have dealt with it as partnership property, although the ownership has not been apparently in all the members of the firm, or, if in all, not apparently as partners, but under some other title. As Lord Chancellor Loughborough says in Forster v. Hale, a very valuable case on this point, " the partnership being established by evidence, upon which a partnership may be found, the premises necessary for the purposes of that partnership are by operation of law held for the purposes of that partnership."1 For it seems that the earlier authorities to the effect that real estate used for partnership purposes maintains its character of realty, and goes to the heirs of the partners respectively,1 have been overruled, and that all property, whether real or personal, involved in a partnership concern, is now, upon the dissolution of the partnership distributable as personalty, and generally is to be, for ordinary purposes, regarded as stock in trade.2