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 Frear v. Hardenbergh, 5 Johns. 272, and the following cases: Benedict v. Beebe, 11 Johns. 145; Mitchell v. Bush, 7 Cow. 185; Lower v. Winters, 7 Cow. 263; Howard v. Easton, 7 Johns. 205. A subscription paper for the erection of a church edifice was held (apparently on the same principle) to be not a contract within the New York Statute of Frauds, in Barnes v. Perine, 15 Barb. 249. The doctrine expressed in Frear v. Hardenbergh has been also adopted in Alabama (Scoggin v. Slater, 22 Ala. 687; Cassell v. Collins, 23 Ala. 676); in Towa (Zickafosse v. Hulick, 1 Morris 175); in Missouri (Clark v. Shultz, 4 Mo. 235), where it was commended on the further ground of the encouragement which it offered to settlers to occupy and improve uncultivated lands; perhaps, also, in Vermont (Forbes v. Hamilton, 2 Tyler 356); and it has been referred to by the Supreme Court of Indiana as settled (Green v. Vardi-man, 2 Blackf. 324). See also South Baltimore Co. v. Muhlbach, 69 Md. 395.
§ 234. In the case of fixtures, which are in no sense incorporated with, but merely annexed to the freehold, the rule is well settled that the fourth section does not apply to render verbal contracts for the sale of them inoperative.1 As has been very correctly observed, a transfer of fixtures simply seems to be nothing more than a transfer of the right which the vendor has to sever certain chattels attached to the soil, but not part of the freehold.2
§ 234 a. In a recent case in the Court of Appeals of New York, a barn, "a wooden structure worth less than $200, and resting upon four large stones at the corners and smaller stones at other places," stood upon a certain lot of land originally owned by the defendant, who subsequently sold a portion, including about two-thirds of the land under the barn, to the plaintiff by mesne conveyances. At the time of each conveyance a statement of the defendant's claim to the whole barn was made - and an oral reservation thereof - and the defendant occupied the barn continuously up to the sale to the plaintiff. After this, defendant removed so much of the barn as stood over plaintiff's land, and plaintiff sued for trespass. The case therefore presented distinctly the question of the validity of an oral reservation of a building removably located upon land at the time of sale. The plaintiff had judgment. The court say: "If at the time of the conveyance the barn had been personal property in the ownership of some other person, and the grantees had been notified of that fact, the title to it would not have passed by the successive conveyances. If this barn had been placed upon the lot by some third person with the consent of the owner, and with the understanding that such third person could at any time remove it, it would have remained personal property, and would not have passed to a purchaser under any form of conveyance, providing such purchaser had notice of the fact. But when the land and the buildings thereon belong to the same person, then the buildings are a part of the real estate and pass with it upon any conveyance thereof. In such a case, the grantor can retain title to the buildings only by some reservation in the deed, or by some agreement in writing which will answer the requirements of the Statute of Frauds." 1
1 Hallen v. Runder, 1 Cromp. M. & R. 266; Horsfall v. Hey, 2 Exch. 778; Bostwick v. Leach, 3 Day (Conn.) 476. Where a house standing on the land of another has been sold and delivered to a third party, the seller may recover the price on the common count for goods sold and delivered Keyson v. School District, 35 N. H. 477. And see Long v. White, 42 Ohio St. 59. But in Meyers v. Schemp, 67 111. 469, the Supreme Court held that a contract for the sale of bricks, etc., the remains of a house that had been burned, was for an interest in land, "because, prima facie, a building is real estate." And see Lavery v. Pursell, L. R. 39 Ch. D. 508; South Baltimore Co. v. Muhlhach, 69 Md. 395; Moody v. Aiken. 50 Texas 65; Michael v. Curtis, 60 Conn. 363.
2 Chitty on Contracts, 320.
§ 234 b. Partition walls and fences are considered as real estate within the Statute of Frauds, on the ground that their use as such involves the right of occupation of the land to that extent.2
§ 235. Under the general head of contracts for the sale of what is annexed to or incorporated with land, the most difficult and embarrassing cases are those which deal with contracts for the sale of crops and other natural products growing upon land. Upon this subject the decisions of the English courts have been singularly vacillating and inconsistent, and many cases in which particular rules have been laid down for determining the question of the application of the statute have, on subsequent consideration, been in whole or in part overruled. It would therefore be presumptuous, and would only mislead the reader, to attempt to reconcile all the decisions; at the same time it is impossible to escape the duty of investigating them and comparing the principles upon which they have been respectively decided.
§ 236. There is, of course, nothing in the vegetable product itself which is an interest in or concerning land. When severed from the soil, whether trees, grass, and other spontaneous growth (prima vestura), or grain, vegetables, or any kind of crops properly so called (fructus industriales), the product of periodical planting and culture, they are alike mere chattels, the sale of which, when their value exceeds a certain sum, may be affected by another provision of the statute,1 but is in no way affected by that which we are now considering. And this severance may be a severance in fact, as when they are actually cut and removed from the ground; or a severance in law, as when, while they are still growing, the owner in fee of the land, by a valid conveyance, sells them to another person;2 or, where he sells the land, reserving them by express provision.3 In certain cases, also, though they are actually growing in land, they may never have any character of realty themselves; as, for instance, if the title to them and the title to the land were originally and have remained distinct. A familiar case of this is found in nursery-trees; the nurseryman merely using the land for the purpose of nourishing his trees, the interest in the trees may be considered as separated from the realty, and they may well be denominated personal chattels, for the wrongful taking and conversion of which the owner may maintain an action de bonis asportatis.4 Such cases of mere annexation to, without