If the contract, when executed 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 in the interim 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 is at the last to take from the land only a chattel.

To put a reasonable construction upon the terms of the fourth section of the statute, from the evidence in this case, it is clear that the contract in question is not within its meaning. It had been executed by the plaintiff, and the fruit had been gathered, and in fact paid for at the time of the suit.

It was in proof that a part of the fruit was prematurely ripe at the time of the contract.

It would be a perversion of the objects of the statute to hold as invalid the sale, in other respects legal, of the growing crop of peaches, with no intent of the parties to sell or purchase the soil, but affording a mere license, express or implied, to the purchaser to go upon the land, to gather the fruit and remove the same. Substantially, to use the language of sec. 271, of 1 Greenleaf's Ev., the transaction takes its character of realty or personalty from the principal subject-matter of the contract, and the interest of the parties, and, therefore, a sale of any growing produce of the earth, in actual existence, at the time of the contract, whether it be in a state of maturity or not, is not to be considered a sale of an interest in, or concerning land. Where timber or other produce of the land, or any other thing annexed to the freehold, is specifically sold, whether to be severed from the soil by the vendee, or to be taken by the vendee, under a special license to enter for that purpose, it is still, in contemplation of the parties, a sale of goods only, and not within the statute.

Judgment affirmed.

Smith V. Price

39 Illinois, 28. - 1865.

Mr. Justice Lawrence delivered the opinion of the Court. - This was a bill in chancery filed by Smith, plaintiff in error, to enjoin Price, the defendant in error, from removing certain fruit trees growing in a nursery, and certain ornamental shrubbery, from a tract of land sold by the latter to the former. Price answered (the oath to his answer having been waived), and on the coming in of the answer a motion was made to dissolve the injunction. A replication was filed and the case seems to have been irregularly set down for final hearing at the same time with hearing the motion to dissolve, and to have been finally disposed of upon the pleadings and the affidavits filed for and against the motion. As no exception was taken to this proceeding, it was probably had by consent. The Court rendered a decree making the injunction perpetual as to a part of the trees, and dissolving it as to a part; and from this decree the complainant prosecutes a writ of error.

The defendant admits a sale of the land by himself to the complainant, and that the latter went into possession under the contract of purchase, but insists that one of the terms of the sale was a verbal reservation of the nursery trees and some other ornamental shrubbery. The proof made in the affidavits upon this point is uncertain and contradictory.

While fruit trees and ornamental shrubbery grown upon premises leased for nursery purposes would probably be held to be personal property, as between the landlord and tenant, yet there is neither authority nor reason for saying that, as between vendor and vendee, such trees and shrubbery would not pass with a sale of the land. They are annexed to, and a part of the freehold. As between vendor and vendee, even annual crops pass with the land where possession is given. Bull v. Griswold, 19 111. 631. Under the contract of sale and the delivery of possession by Price to Smith, the latter became the owner of the trees as well as of the soil, and it would be a violation of the most familiar rules of evidence to receive proof of a verbal arrangement cotemporaneous with the written contract and impairing its legal effect. The parties, in executing the written instrument, deliberately made it the exclusive evidence of the terms of their agreement. This instrument shows a sale of the land in such terms as to pass the trees. No reservation is made, and to permit the vendor now to show that there was a verbal agreement for their reservation, would be to permit him to prove a verbal contract, inconsistent with the legal import of that executed by the parties under their hands and seals. This the law forbids. We find nothing in the case to make it an exception to this familiar principle, and it is, therefore, unnecessary to advert to the evidence in detail. As the record shows that Price has actually removed a part of the shrubbery, and claimed the right to move much more, it was a proper case for an injunction, and the decree will be reversed and the cause remanded, with instructions to the court to proceed in conformity with this opinion.

Decree reversed.

Batterman V. Albright

122 New York, 484. - 1890.

ACTION for damages for alleged conversion by defendant of nursery trees, grape-vines and bushes standing and growing on a farm which was formerly the property of Peter S. Markle, who was a nurseryman. The farm was subject to a mortgage made in 1868. Plaintiff now claims title to the trees, etc., in question by virtue of an execution sale in 1877, on a judgment against Markle. Defendant took possession of the premises under a foreclosure sale in 1878, had on the mortgage in question. Judgment below for the defendant. Plaintiff appeals.

Bradley, J. - It may be assumed that, as against Markle, the judgment-debtor, the plaintiff, by his purchase at the sale made by the constable upon the execution, took title to the nursery trees and the right to remove them. The question for consideration has relation to the effect, upon such rights, of the foreclosure of the mortgage, and the title to the premises derived from it. The trees and bushes in question had been grown in the nursery since the mortgage was made; and the plaintiff's claim of title was derived wholly from his purchase on the execution sale. As against the mortgagor, the foreclosure and sale were effectual to vest the title to the trees in the purchaser, and in the defendant as his grantee. The rule, as between mortgagor and mortgagee as to crops growing in mortgaged premises, is no less favorable to the claim of the plaintiff than that relating to nursery trees, which partake of the same character. And the principle applicable to both in such case may be treated as the same. The doctrine on the subject of emblements, and who, in their relation to the land on which they were growing, were entitled to them, was well defined at common-law; and it was distinct from that of fixtures. They were treated as so distinct from the real estate as to be subject to many of the incidents of personal chattels. Co. Litt. 55b; 2 Bl. Comm. 404. And although they did not go to the heir, they did to the devisee, and to the remainderman for life. Broom's Leg. Max., 305. And in this State they go to the devisee, subject only to the payment of debts of the testator and the legacies given by his will. Bradner v. Faulkner, 34 N. Y. 347; Stall v. Wilbur, 77 Id. 158. They, belonging to the grantor, also passed with a conveyance of the land, and such is now the rule. And the common law, in respect to emblements, is not very greatly modified by the statute, which provides that they be deemed assets and shall go to executors and administrators to be applied and distributed as personal estate. 2 R. S. 82, sec. 6. It may be observed that the doctrine applicable to growing crops is distinguishable from that relating toother personal property on land as between grantor and grantee and mortgagor and mortgagee; the theory on which it rests is that they in some sense appertain to the realty. And the general rule as declared from an early day by text and judicial writers, is that a party entering into possession by title paramount to the right of the tenant takes them. Co. Litt. 55b; Davis v. Eyton, 7 Bing. 154. Whether, without the aid of some statute, that rule is subject to any qualifications or exceptions, and if so, what, it is now unnecessary to inquire or determine. In the present case, the mortgagor had been in default several years at the time of the plaintiff's purchase of the nursery trees on the execution sale. And the defendant's entry into possession of the premises was by title paramount to any right which could have been derived from the mortgagor in them subsequently to the time the mortgage was given. Although since the right to maintain ejectment is denied to a mortgagee by statute (2 R. S. 312, sec. 57; Code, sec. 1498), his mortgage is a mere security, and the title to the mortgaged premises remains in the mortgagor, the foreclosure and sale in practical effect operates to eliminate the defeasance, and the purchaser takes the title of the mortgagor as of the time the mortgage lien was created. Rector, etc. v. Mack, 93 N. Y. 488. And while the plaintiff, as against the mortgagor and without liability to the mortgagee, may have taken the nursery trees from the premises prior to the time of the foreclosure of the mortgage, he had no such right, as against the purchaser or his grantee who had entered under the title perfected by the sale on foreclosure and the conveyance made pursuant to it. Lane v. King, 8 Wend. 584; Shepard v. Philbrick, 2 Den. 174; Gillet v. Balcom, 6 Barb. 370; Jewett v. Keenholts, 16 Id. 194; Sherman v. Willet, 42 N. Y. 146; Aldrich v. Reynolds, 1 Barb. Ch. 613; Adams v. Beadle, 47 la. 439, 29 Am. Rep. 487. The suggestion of the plaintiff's counsel that there has been a modification of the rule of law on the subject, and that the case of Lane v. Ring is not, therefore, entitled to the weight of authority, may be applicable to fixtures to which the authorities cited by him relate. But emblements are not fixtures within the meaning of the rule applied to them. The subject of the former is treated in the law as distinct from the latter; and while they may be taken on execution, supported by a judgment, not a lien upon the realty, those things which have become fixtures cannot. But the doctrine peculiar to growing crops, originating in considera-tions deemed beneficial to the interests of agriculture, has remained substantially unchanged, and the rule, as stated in Lane v. King, was not only followed in some of the cases before cited, but that case and its doctrine have more recently been judicially cited and referred to with approval in this State, Harris v. Frink, 49 N. Y. 31; Samson v. Rose, 65 id. 416, and it quite uniformly prevails where the common law on the subject remains in force. The rigor of the old common law, which gave forfeiture as the consequence of default in payment of a mortgage, has been modified so as to permit payment at any time before sale on foreclosure. But that does not affect the question under consideration. And our attention is called to no reason why the considerations upon which the doctrine relating to emblements was founded, and has since been observed, are now any less entitled to sanction than formerly. The fact that the right to ejectment is taken away from the mortgagee by the statute and the mortgage reduced to a mere chose in action secured by lien upon the land, while the defeasance remains effectual, does not seem to have any essential bearing upon the question, inasmuch as the perfecting of title under it has relation to the time it became a lien. The case of Mott v. Palmer, 1 N. Y. 564, is not analogously inconsistent with the view here taken. There the right of the plaintiff, under his agreement with the owner of the premises, arose before the sale and conveyance to the defendant. And if the right of the plaintiff in the present case had been acquired to the trees prior to the mortgage, a different question would have been presented. In that event, the sale upon the execution and purchase by the plaintiff may have, so far as essential, been treated as a severance of the growing trees from the realty. But they cannot be so treated as against the title paramount of the defendant. Shepard v. Philbrick, 2 Den. 174; Gillett v. Balcom, 6 Barb. 370. These views lead to the conclusion that the plaintiff was not entitled to recover, if the foreclosure of the mortgage was effectually made. The plaintiff's counsel contends that it was not because: (1) One Mary M. Markle was not made a party to the foreclosure action, and (2) the plaintiff was not a party to it. The first objection was founded on the fact that the mortgagee had assigned a partial interest in the mortgage to Mary M. Markle. This did not render the decree invalid. The mortgagee was a proper party plaintiff, and the omission to unite the other party having a claim upon a portion of the amount secured by the mortgage furnished no ground for a collateral attack by the mortgagor or the plaintiff. The equity of redemption was barred by the foreclosure. And the plaintiff had no relation to the realty to make him a necessary party for any purpose essential to the title derived from the foreclosure of the mortgage. He could acquire no interest in it by his purchase upon his execution sale. Nor is it found that the mortgagee, at the time of the foreclosure sale had any notice of the claim of the plaintiff founded upon his purchase. Code, sec. 1671.