It would be giving to the statute a very latitudinarian construction to bring the case in question within the mischief designed to be avoided by the statute. We have been referred to no case in this State, and have found none to sanction such doctrine. The cases of Ellicott v. Peterson's Ex'rs, 4 Md. 476, and Smith v. Bryan, 5 Md. 141, are against such enlarged construction.
The first case, in regard to agreements to be performed within a year, decides that a complete performance by one of the parties within the year is sufficient compliance with the requirements of the statute.
The latter case substantially holds that the sale of standing trees, under the circumstance of that case, was a sale of goods, and conformed to the demands of the seventeenth section, and refers with approval to sec . 271 of Greenleaf's Evidence.
There is certainly some conflict in the adjudged cases in regard to the interpretation of contracts for the sale of crops and the natural products growing upon land; and it is difficult to deduce therefrom any clearly defined rule upon the subject.
Mr. Alexander, in his admirable treatise on the British Statutes in force here, has carefully referred to numerous cases, both English and American, and deduced therefrom the distinctions which seemed to have prevailed in regard to the operation of the statute in relation to growing crops and other produce of land. At page 532 et seq., contracts, as to the natural product of the land, are distinguished from such as relate to crops raised by the industry of man, and yielding an annual profit. A distinction is also noted between the natural produce when severed by the seller or by the buyer. He refers to the recent work of Benjamin on Sales, 84 et seq., for a fuller discussion. Mr. Benjamin, at p. 99, remarks, from all that precedes, the law on the subjects of the sale of growing crops may be summed up in the following proposition, viz.: Growing crops, if fructus industriales, are chattels, and an agreement for the sale of them, whether mature or immature, whether the property in them is transferred before or after severance, is not an agreement for the sale of any interest in land, and is not governed by the fourth section of the Statute of Frauds. Growing crops, if fructus naturales, are part of the soil, before severance, and an agreement therefore vesting an interest in them in the purchaser before severance is governed by the fourth section; but if the interest is not to be vested till they are converted into chattels by severance, then the agreement is an executory agreement for the sale of goods, wares and merchandise, governed by the seventeenth, and not by the fourth section of the statute.
Assuming these distinctions to be well founded, still what is the natural and what the artificial product remain to be determined in each case. Mr. Phillips, in his work on Evidence, 3 vol. 250, says, the statute does not include agreements for the sale of the produce of a given quantity of land, and which will afterwards become a chattel; though some advantage may accrue to the vendee by its continuing for a time in the land.
In Taylor's recent book on the Law of Evidence, 2d vol. sec. 952, the following propositions are submitted: 1st. A contract for the purchase of fruits of the earth, ripe, though not yet gathered, is not a contract for any interest in lands, though the vendee is to enter and gather them. 2d. A sale of any growing produce of the earth, reared annually by labor and expense, and in actual existence, at the time of the contract, as, for instance, a growing crop of corn, hops, potatoes, or turnips, is not within the fourth section, though the purchaser is to harvest or dig them. 3d. An agreement respecting the sale of a growing crop of fruit, or grass, or of standing underwood, growing poles or timber, is within the fourth section, and a written contract of sale cannot be dispensed with.
However sound his first and second propositions, we think his third is to be taken with some qualification - and that a growing crop of peaches or other fruit, requiring periodical expense, industry and attention, in its yield and production, may be well classed as fructus industria/es, and not subject to the fourth section of the statute.
Brown on Statute of Frauds, in sections 236, 237, 246, 247, and 249, and Greenleaf's Ev. 1 vol. sec. 271, have furnished from the adjudged cases, a construction more in consonance with our views upon the subject, and is substantially to the following effect: There is nothing in the vegetable or fruit which is an interest in, or concerning land, when severed from the soil, whether trees, grass and other spontaneous growth (prima vesturd) or grain, vegetables, or any kind of crops (fructus industriales), the product of periodical planting and culture; they are alike mere chattels, and the severance may be in fact, as when they are cut and removed from the ground; or in law, as when they are growing, the owner in fee of the land, by a valid conveyance, sells them to another person, or where he sells the land, reserving them by express provision.
As a general rule, if the products of the earth are sold specifically, and by the terms of the contract to be separately delivered, as chattels, such a sale is not affected by the fourth section of the statute, as amounting to a sale of any interest in the land. When such is the character of the transaction, it matters not whether the product be trees, grass and other spontaneous growth, or grain, vegetables, or other crops raised periodically by cultivation - and it is quite immaterial whether the produce is fully grown or in the process of growing, at the time of making the contract.
The circumstance that the produce purchased may, or probably, or certainly will derive nourishment from the soil between the time of the contract and the time of the delivery, is not conclusive as to the operation of the statute.