If, however, the crops are to be considered as land or personal chattels, as they continue or do not continue to draw nourishment from the soil, the instances will be numerous in which very difficult inquiries will be requisite to settle the point.
It was further urged by plaintiff in error that, if it should be considered that the corn would pass by the deed, still the jury should have been allowed to inquire whether the parties did not enter into a contemporaneous verbal agreement, by which the grain was to belong to Tripp as part of the consideration for the farm. Without pausing to consider whether the plaintiff could be permitted to make the proof suggested, or could support his action by any arrangement like that supposed, it is quite sufficient to observe that there does not appear to have been any evidence fairly tending to show the existence of such an agreement. The plaintiff was himself on the stand, and yet he did not hint at the existence of a bargain of that kind.
1 Reported supra, p. 31. - Ed.
It was finally insisted that the charge of the court was erroneous in stating that a subsequent agreement by the vendee, that the vendor should have the corn, would be void for want of consideration; and we are told that the error on this point is shown by the circumstance that there was enough to warrant the jury in finding that defendant was under an equitable obligation, to have the deed so reformed as to except the corn, and that this fact constituted a sufficient consideration for an agreement by Hasceig, that the crop should belong to Tripp.
This argument assumes, that if the nonreservation of the corn in the deed was by mistake satisfactorily ascertained or admitted, that then an equity would arise for the correction of the deed, which in turn would be an adequate consideration to support a subsequent agreement by Hasceig, that the grain should belong to Tripp. We need not examine the validity of this view, since it is quite manifest that the case contemplated by it, is not found in the record before us.
The position taken implies that there was evidence before the jury to establish, according to the requirements of a court of equity, a mistake in the deed in not reserving the corn, and that there was also evidence conducing to prove a subsequent agreement that Tripp should have the corn, and resting for consideration on the right to have the deed corrected in equity.
There was a little evidence favoring the idea of a subsequent parol recognition by Hasceig of the right of Tripp to the corn under the conveyance of the land, but we look in vain for evidence of the assumed mistake in the deed.
It is well settled that to raise an equity to correct a deed, there must not only be an error on both sides, but the mistake must be either admitted or directly proved. Adams' Eq. 171, margin; Fry on Specif. Per. (2d Am. ed.), p. 312, top, and note 11. The language of several of the cases cited by plaintiff's counsel is to the same effect. In Kennard v. Geo 44 N 11 440, the court say that the mistake must be clearly proved. In Canedy v. Marcy, 13 Gray, 373, it is said the court has jurisdiction to reform a deed upon clear oral evidence of the mistake, and in Beardsley v. Knight, 10 Vt. 185, the expression is still stronger. It is there declared that the court will correct a misatake in a conveyance " when undeniably proved," and that " unless it be so proved it will not interfere." It is very certain that the record before us fails to show that a mistake in the deed was established on the trial below, or that any evidence was there introduced, fairly tending to show that fact, and therefore upon the theory of plaintiff's counsel, there was no evidence of any consideration for a subsequent agreement by Hasceig, that Tripp should have the corn.
The charge of the court should be construed in the light of the evidence before the jury, and when viewed in this way we discover nothing of which the plaintiff can justly complain.
In order to preclude all misapprehension as to the scope of this decision, we deem it not improper to add, that we express no opinion as to whether Tripp would be liable to Hasceig for any part of the crop appropriated by the former, with the acquiescence of the latter, under a verbal reservation.
The judgment of the court below is affirmed with costs.
Christiancy, J. - I concur with my brethren in the opinion of my brother Graves; but had it appeared in the case that it was the custom of the country where the farm was situated, (as it is in some of the western States,) to keep the ripe corn in the field for the winter, or till wanted for use or market, and to be taken only on the like occasions or for the like reasons as if stored in the crib or granary, - thus using the field merely as a substitute for such crib or granary, - I am inclined to think I might have agreed in the opinion intimated by the Supreme Court of Illinois in Powell v. Rich, 41 I11. 466, cited by Brother Graves.
3 Ohio State, 438. - 1854.
Assumpsit. August 18, 1874, plaintiff contracted verbally for the purchase from defendant of certain real estate, whereon there was standing a number of acres of corn which was reserved by parol. Two days later the deed was made containing no reservation or exception of the crop. Defendant offered to prove the parol reserration. This evidence was received under objection. Verdict for defendant. Motion for a new trial, and the court being equally divided on the motion, the case was, by consent, reserved for decision in this court.
Warden, J. - That growing corn will pass by common deeds of the lands whereon it grows, when no valid conversion of it into personalty is shown to have preceded the conveyance, cannot be doubted. But whether such a conveyance always purports to carry the title to growing crops, is another question. Many things may be in or on the ground when a deed is made, which the parties do not intend, and which no inflexible rule of law requires to fall under the conveyance. Such things are realty or personalty, according to the intention of the parties. Lands may be sold while under lease; the lessee may have built, for manufacturing purposes or the like, with the right, as between landlord and tenant, to remove his buildings at the end of his term; in such a case, would a deed to a stranger purport to convey the buildings? It is certain, that when the vendor is in possession, and has himself made such erections on his lands, they would pass by his deed. Why not, then, construe the deed as pretending to convey them in every case? And why admit proof outside of the deed, to show that the buildings were of the nature first supposed, and thus to manifest the understanding of the parties that they were not touched by the conveyance? Is it not because such proof does not vary, enlarge, diminish, or contradict the deed, that it is admissible, as an answer to whatsoever complaint the vendee may prefer, on the ground that he has failed to get what his deed purports to convey?