1 Ante, §§ 21 et scq., in regard to licenses which amount to leases, Huff v. McCauley, 53 Pa. St. 206.

2 Ante, § 241. 3 Ante, §239. * Ante, § 240.

4 Ante. § 243. And see Jones v. Flint, post, § 251; Bricker v. Hughes, 4 Ind. 146; Sherry v. Picken, 10 Ind. 375; Bull v. Griswold, 19 111. 631; Bryant v. Crosby, 40 Me. 9; Marshall v. Ferguson, 23 Cal. 65. But see Powell v. Rich, 41 111. 466.

§ 248. Fourthly. If the benefit of the soil is contracted for by the purchaser of the crop, if it be in the contemplation of parties that the purchaser shall use the vendor's land, in the interval between sale and delivery, for the purpose of raising the crop which, when matured, is to belong to the purchaser, then clearly the contract is for an interest in the land. It is distinguished by form only from a lease of the land for that purpose; for it can make no difference whether the cultivation is to be by the purchaser himself, or by his agent, the vendor.

1 Ante, § 239. 2 Ante, § 241. 3 Ante, § 240. And in Jones v. Flint, post, § 251.

Lord Littledale's language in Evans v. Roberts 1 is marked to this effect: "The legislature contemplated an interest in land which might be made the subject of sale. I think, therefore, they must have contemplated the sale of an interest which would entitle the vendee either to the reversion or to the present possession of the land." And Holroyd, J., said the plaintiff "clearly had no interest so as to entitle him to the possession of the land for a period, however limited, for he was not to raise the potatoes."

§ 249. The general rule, therefore, furnished us by the cases we have had under review would seem to be this: If by the intention of the parties the contract is to convey to the purchaser a mere chattel, though it may be in the interim a part of the realty, it is not affected by the statute; but if the contract is to confer upon the purchaser "an exclusive right to the land for a time for the purpose of making a profit of the growing surface," it is affected by the statute and must be in writing, although the purchaser's profit may be derived from the sale of the produce of the land as a mere chattel. Whether, in a given case, the parties do contemplate the use of land, or merely the sale of that which, when delivered, will be a mere chattel, ought not, it would seem, to present much difficulty. Notwithstanding the emphasis laid by Bayley, J., in Evans v. Roberts,2 upon the fact that there the contract was not for the sale of the produce of any specific part of the land, it is very clear that, if it had been, the statute would not necessarily have applied. There are many, among the cases quoted, where, notwithstanding this fact, verbal contracts were held good. Nor would it seem, upon the authorities, that the mode of payment, whether in a gross sum for the entire yield, or at so much per cord, foot, bushel, acre, etc., determines the contract to be for a sale of an interest in the soil or of a chattel only. If by the contract the purchaser is to own the crop merely, as a chattel severed from the realty, it is good without writing; if he is to own it while it is growing, and is to have the use of the land to grow it in, then a verbal contract to that effect is not good.

1 Ante, § 240.

2 Ante, § 240.

§ 250. But there is another doctrine upon this subject which has attracted much favor of late years, and that is that the application of the statute is to be determined by the character of the growing crop; verbal contracts for the fructus industriales, or growing grain, vegetables, etc., which are produced by periodical planting and culture, are at common law considered as emblements, go to the executor, and are leviable in execution, being good; and verbal contracts for the prima vestura, or growing trees, grass, fruit, etc., which at common law go to the heir, as of the realty, being not good. A brief review of the cases quoted in support of the rule here suggested seems indispensable to a full understanding of the question.

§ 251. In Evans v. Roberts,1 both Bayley and Littledale, JJ., allude to this distinction; the former remarking that in Crosby v. Wadsworth the contract was for the "growing grass which is the natural and permanent produce of the land, renewed from time to time without cultivation;" but neither of them professed to find the distinction mentioned therein, and the case before them was, as we have seen, determined on other grounds. In Scorell v. Boxall, decided in the Exchequer in 1829, the action was trespass for cutting down and carrying away underwood, and the question presented was whether the plaintiff, who had verbally purchased the underwood then standing, to be cut by him, had such a possession as would enable him to maintain the action. Chief Baron Alexander said: " The action in this case proceeds upon the right of property in the plaintiff to the wood in question; and the contract by which that right is sought to be sustained, is a mere parol contract for the sale of growing underwood, part of the freehold, and in direct violation of the Statute of Frauds."2 The decision seems to be entirely tenable without relying on any distinction between underwood and any other growth of the soil; for it was a case of an executory contract of sale, to be completed by the plaintiff's severing the underwood from the freehold, and until it was thus severed it remained the property of the owner of the soil. Moreover, this case was followed within two years by Smith v. Surman,1 which held that the sale of standing trees, in prospect of severance and to be delivered after severance, was good without writing; and in that case the argument of the plaintiff took the same view of Scorell v. Boxall, and the court, not mentioning the case in terms, adopted the reasoning in the argument entirely. In Rodwell v. Phillips, a case in the Exchequer in 1842, the contract was for the sale of all the growing fruit and vegetables on a certain part of the vendor's close, for the price of 30, the vendee to enter and gather the crop when it was ripe; and the question was whether it was within the statute 55 Geo. III. c. 184, requiring a stamp upon an agreement for any interest in lands of the value of 20. It was held that it was. Lord Abinger, C. B., said: "The difference appears to be between annual productions, raised by the labor of man, and the annual productions of nature, not referable to the industry of man, except at the period when they were first planted; " and again: " Growing fruit would not pass to an executor, but to the heir; it could not be taken by a tenant for life, or levied in execution under a writ of ft. fa. by the sheriff; therefore it is distinct from all those cases where the interest would pass, not to the heir-at-law, but to some other person."2