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 Sainsbury v. Matthews, 4 Mees. & W. 343. 2 Post, §§ 255-257.
1 See this case referred to as bearing on the construction of the statute as it regards leases, ante, § 18. 2 Ante, Chap. VIII.
§ 245. Let us now attempt an analysis of the doctrines comprised in the cases we have examined. First It is quite clear that the character of the contract for the growing produce of land is not to be determined by the mere circumstance that the purchaser is to have the liberty of entering upon the land to gather what he has purchased. In Crosby v. Wadsworth,1 the grass was to be mowed and made into hay by the purchaser; but that the reason why the contract there was held to convey an interest in land was not the right of entry given to the purchaser, is clear both on inspection of that case and from the fact that in Warwick v. Bruce2 the same judge held a contract which embraced the same right to be binding without writing. The remarks of Hol-royd, J., in Evans v. Roberts,3 and of Littledale, J., in Smith v. Surman,4 are decisive on this point; and in Parker v. Staniland, where the same feature existed, Lord Ellen-borough expressly said that the defendant's "easement," or right to come upon the land for the purpose of carrying away the potatoes, gave him no interest in the land.6 It is indeed a very familiar rule that the license given to a purchaser of a chattel to come on the land and remove it is not revocable by the vendor,6 and it is to be regretted that the subject under consideration should ever have been complicated by any distinction on such a point. But the rule as stated requires to be carefully applied. It may be that the privilege of entry is, by the terms of the contract, to continue so long (as, for instance, during the pleasure of the buyer,7 or even for a number of years8) as to ingraft upon a transaction which was nominally a purchase of a chattel the character of a lease of land. For certainly the privilege of occupying another's land is as much a lease when the occupancy is by leaving purchased articles upon it as when it is by depositing any other articles upon it.1 Perhaps the only rule which can be safely stated on this point is, that the time allowed for the removal of the growing produce should be such as is reasonable for the purpose and under the circumstances in which the parties are placed, and not such as to tend to show, either by its length or its indefiniteness, that the parties really contemplated giving and acquiring an interest in land.
1 Crosby v. Wadsworth, 6 East 602.
2 Poulter v. Killingbeck, 1 Bos. & P. 397.
1 Ante, § 244. 3 Ante, § 240.
2 Ante, § 239. 4 Ante, § 242.
5 Ante, § 241. And see Smith p. Surman, ante, § 242; Jones v. Flint, 10 Ad. & E. 753; Nettleton v. Sikes, 8 Met. (Mass.) 34; Claflin v. Carpenter, 4 Met. (Mass.) 580; Whitmarsh v. Walker, 1 Met. (Mass.) 313; Miller v. Baker, 1 Met (Mass.) 27; Kleeb v. Bard, 7 Wash. 41. But see Carney v. Mosher, 97 Mich. 554.
6 Wood v. Manley, 11 Ad. & E. 34; Cool v. Peters Co., 87 Ind. 531.
7 Erskine v. Plummer, 7 Greenl. (Me.) 447.
8 Putney v. Day, 6 N. H. 430; Olmstead v. Niles, 7 N. H. 522; Buck v. Pickwell, 27 Vt 157. But see Safford v. Annis, 7 Greenl. (Me.) 168; Byassee v. Reese, 4 Met. (Ky.) 372.
§ 246. Secondly. There is no materiality, as to whether the Statute of Frauds affects the contract or not, in the circumstance that the produce is fully grown or in process of growing at the time of making the contract. True, Lord Ellenborough made such a distinction in the case of Parker v. Staniland,2 observing that there the potatoes were matured, whereas in Crosby v. Wadsworth the grass was in a growing state. But he abandoned it four years afterwards in Warwick v. Bruce,3 where the sale was of a growing crop of potatoes, and was held good because the contract did not confer an exclusive right to the land for a time for the purpose of making a profit of the growing surface; and the cases of Evans v. Roberts,4 and Sainsbury v. Matthews,5 were both upon sales of immature crops, and in both the sales, though verbal, were held good.
§ 247. Thirdly. The mere circumstance that the produce purchased may, or probably or certainly will, derive nourishment from the soil between the time of making the contract and the time of delivering the produce, is not conclusive as to the application of the statute. In Warwick v. Bruce, where the potatoes were growing and no time was fixed for their removal, Lord Ellenborough said, "that whether at the time of sale they were covered with earth in the field, or in a box, still it was a sale of a mere chattel." l So in Parker v. Staniland,2 he said: "It is probable that in the course of nature the vegetation was at an end; but be that as it may, they [the potatoes] were to be taken by the defendant immediately, and it was quite accidental if they derived any farther advantage from being in the land;" and Bayley, J., remarked that the land was to be considered as a mere warehouse till the defendant could remove them. But is it necessary to the application of the rule that the produce bargained for be, by the terms of the contract, to be taken immediately? We should hesitate to assert a fresh distinction upon the ground of the casual use of that expression by Lord Ellenborough. The case in which it occurs was quoted by the judges in Evans v. Roberts,3 with strong approbation, without any apparent apprehension of the materiality of the point to the decision, and they themselves decided the contract before them to be good, though the crop bargained for was to remain in the land until it was ripe. But, as is seen in the next section, the time of removal does become an important consideration when the parties intend to make a present sale of the crop, but stipulate that it shall remain on the land for a term of years, or during the pleasure of the purchaser.