Bjornson v. Rostad , 30 S.D. 40 ( 1912 )

McCOY, P. J.

There was a directed verdict and judgment for plaintiff, and -defendant appeals. On the 18th day -of June, 1907, defendant executed1 and delivered to- plaintiff a warranty deed'o-f a certain quarter s-eotio-n of land in Gregory county, absolute in form, and' containing no ex-ecptions or reservations what-so.ever, and reciting 'a consideration "of one dollar and other good and valuable .considerations.” At the time of the execution and delivery of said deed, there was standing and growing on said land an immature crop of wheat that had been sown by defendant ■the spring before. Neither plaintiff nor defendant personally resided upon said land at any of the times in question, there being no buildings thereon; but plaintiff and» defendant resided upon other lands in the same vicinity. When said crop of wheat ripened, the same was, against the will and consent of plaintiff, cut and harvested by defendant and removed to defendant’s premises and stacked thereon. Plaintiff 'thereupon brought this -action in re-plevin to recover the possession of -said wheat, or its value, claiming to be the owner thereof. Defendant denied plaintiff’s right to possession and ownership. On the trial plaintiff offered in evidence the -said deed. Defendant then offered to prove, as a part of his defense, that before the execution of said deed it was agreed that there was some -difference between -the parties relative -to the ownership of -said land; that in settlement of said difference it was agreed that -defendant .should deed said land to plaintiff; and that as a part of the consideration of said deed he should harvest the crops then growing thereon, and should retain the. said crop. To which offer plaintiff objected, on the ground that it was incompetent, immaterial, irrelevant, and not. the best evidence, and sought to change, vary, and modify the terms of said deed. The objection was- sustained, to which ruling of -the -court .defendant duly excepted and now assigns- the same as error.

[ i ] 'Growing crops, of grain are- clearly fructus- industriales— growing things-,produced and.raised by the .industry of man. and the cultivation! ;of the -soil. Sections 186, 187, and 188, ..Civil Code, défining land, clearly exclude growing grain, and only include such growing things as are annexed to the -earth -by roots-, such as are deemed fructus naturales, those which are,produced- -by the powers of .nature.. The Civil Code of California, from which state our Civil Code was adopted, defines land in identical language. Sections 6,58, 659 and 660, Kerr’s Cal. Civ. Code. The -Supreme Count. of ' California -holds that growing ’ crops raised by the ‘ industry of man and the cultivation of the soil are -chattels, and that a contract for ‘the sale thereof is noit within the statute of frauds, relating to the sale of an interest in land, and that such crops may be reserved from the operation of a deed by parol. Davis v. McFarlane, 37 Cal. 634, 99 Am. Dec. 340; Vulicevich v. Skinner, 77 Cal. 240, 19 Pac. 424. And it seems to toe so held in many other jurisdictions. Grabow v. McCracken, 23 Okl. 612, 102 Pac. 84, 23 L. R. A. (N. S.) 1218, 18 Ann. Cas. 503, and note; Cooper v. Kennedy, 86 Neb. 122, 124 N. W. 1131, 31 L. R. A. (N. S.) 761, 136 Am. St. Rep. 701; Baker v. Jordan, 3 Ohio St. 438; Bourne v. Bourne, 92 Ky. 211, 17 S. W. 443; Heavilon v. Heavilon, 29 Ind. 509; Holt v. Holt, 57 Mo. App. 272; Mabry v. Harp, 53 Kan. 398, 36 Pac. 743; Pattison’s Appeal, 61 Pa. 294, 100 Am. Dec. 641; Bloom v. Welsh, 27 N. J. Law, 177; Flynt v. Conrad, 61 N. C. 190, 93 Am. Dec. 588; Simanek v. Nemetz, 120 Wis. 42, 97 N. W. 508; Walton v. Jordan, 65 N. C. 170; Bond v. Coke, 71 N. C. 97; Backenstoss v. Stahler, 33 Pa. 251, 75 Am. Dec. 592. See note 23 B. R. A. 450.

In Backenstoss v. Stahler, supra, the court said: “If i:s a rule of common law that growing crops are personal property, but pass by conveyance as appurtenant to the land, unless severed by reservation or exception; and this -rule has not been altered- by the statute of frauds. A party may show by parol that the growing crops were reserved on the sale of the land, although there may be no exception in the deed.”

In Bloom v. Welsh, supra, the court said: “At common law growing crops raised annually by labor and cultivation are personal property. They may be sold and conveyed, as chattels, by parol. A contract for their sale is not a contract for the sale of an interest in land under the statute of frauds; and the purchaser of growing grain acquires the privilege of leaving the grain upon •the soil until maturity, and also the privilege of enterng to gather •and take .away the crops.”

In Baker v. Jordan, supra, the court said: “That growing grain will pass by common deed of the land's 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. M'any things may be in or on the ground 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. However little favor should be shown to reservations made by the vendor by parol, when he is in possesion, there must be some such reservations which are valid. It is in such instances a question of intent. Where that intent relates to things which may sometimes be treated as realty and sometimes as personalty, the evidence of its manifestation in the conduct of the parties or in their words, at tlie date of the deed 'does- not seem to' alter, enlarge, or limit their written contract. For, as already observed, the contract does not necessarily embrace such things. The case of a deed, then, is clearly distinguishable from that of many 'other written contracts. What such an instrument purports to convey is to be shown from the legal rules which have assigned to it a definite legal character. And when those rules are attentively considered,-it will be found that the common word's describing the ground conveyed must always leave it an open question whether the growing crops were intended as a part of the thing in which the property was to change. A deed purports to convey the realty. But what is the realty ? Growing corn may be a part of it for some purposes; but if is generally to be 'considered as personalty. If the parties to the deed, either by words or their behavior, signify their understanding that as between them it is a personalty, the law will so regard it, and will respect their intention in the construction of the deed. When, the evidence of such understanding is produced, it is not to contradict the deed, for with that it is perfectly consistent, but it is to show that what in some instances would go with the land as a part of realty was, in that case, converted into1 personalty by the will of the parties, and thus to hold the deed to- its- true meaning and effect.”

In Holt v. Holt, the court said: “The defendant further contends that the deed offered in evidence is conclusively presumed to include the whole contract between the parties thereto. While this contention may be conceded1-to’the!'’defendant, -it''is Nevertheless true 'that in a deed like that in this case', where't-h'e'fe''is- a -mefe statement of a certain amount'of money, without more-'as a^consideration,’it i's but 'inattentive recital, Common'in conveyancing-of a'consideration'In'most' general usé, which fonhs no part of the contract: The statement-of -the amount of the■ consideration in a deed and the acknowledgement of its payment is- no more than a receipt — a statement of a -fact which is not necessary to the validity of the deed: It is- Only -prima facie -evidence of what it states, but not conclusive, except that there was some consideration. Such’ a recited- --consideration is not intended to be contractual, and therefore works no estoppel as to amount'or character; or, in other' words, the parties in s-uch case are not estopped--from showing by parol evidence the amount and character of the consideration to be different from that recited in the deed. It follows -that -it was competent for plaintiff to show by parol evidence- that the consideration for the sale of the laud' was the' $3,000 in money and -the delivery of the on-e-half -of -the growing crop of wheat, when harvested and threshed.” ■

And in- Heavilon- v. Heavilon,- supra, the -court said-:. “It is' well settled that -a vendor, in a suit for -the purchase money, m-ay prove by parol evidence, the amount thereof, the- terms of payment, and its nonpayment, notwithstanding the receipt o-f the purchase money may be acknowledged -in the -deed. Now, suppose -that the defendant, -as -a part of the consideration to- the plaintiff foe the land described in- the deed, had agreed that .the plaintiff should have a crop of wheat growing on another tract "of land owned b.y defendant, and had subsequently refused permission- to -cut---and carry .it away, -would any one -contend that plaintiff could- not- recover of the -defendant-the value of the wheat? -Or, -if, as-in- this case, the plaintiff -had harvested the wheat- without objection, that the defendant .could recover back, its value?-- Does, not -the same principle apply in this :-case? -Can- any logical-.reason be-shown why it should not?- Admit-that the deed upon-Its delivery conveyed the' growing c-rop,' Still- -it was ■-•n-ot -a--fixture which-.constituted: permanently a part-of 'the- land;-it--was the -subject of sale by parol',' árí-d what rule of law: i-s'there':t'6 prohibit the defendant from making such a sale a part of the same contraot by which he would become owner, or that would convert the deed into an estoppel against parol proof of s-uch sale? If, as alleged in the reply, the defendant-contracted the wheat to the plaintiff as a part of the consideration of the land, then the execution of the deed was a performance of the -contraot on the part of the plaintiff and entitled him to- the wheat, and no -question under the sta-tu-e of frauds contended for by the 'appellee co-ul-d arise in the case.”

In -the- case of Cooper v. Kennedy, -supra, the court said: ‘‘The Pennsylvania rule is that growing crops — fructus indus-tral-es — are personal property, but pass by conveyance with and as appurtenant to the realty, unless severed therefrom by reservation or exception ; that the vendor may show such reservation by parol evidence, but that a reservation of t-h-e natural products of the earth — fructus naturales — must be in writing. From a consideration of these cases and of the previous decisions of this court, we are satisfied to- -declare that, though growing crops are personal property, they pass by -a deed as appurtenant to- the realty, but -they may. be severed therefrom by reservation, evidenced either by parol agreement or instru-ment in writing; and -that the vendor may show by par-ol evidence that the -crops were reserved from the sale of the land.”

[2] The execution and delivery of á -deed in man}' instances is only one of the component parts of a larger and more component parts of a larger and more comprehensive transaction, and which larger and broader transaction, in so far as it 'does not conflict with the statute of frauds, or have the effect of varying* the term's of the written deed, may be shown by parol. In Flyn-t v. Conrad, supra, the court said: “In the former case the parol proof that, according to the contract of sale, the grantee was to have the wheat -that remained shocked in the field does not add to the deed, for its purpose and effect was only to execute -one part of the contract, and- there is no reason why 'the other part may not be established by parol proof; so-, ’and for the- v-ery samp reason, in the latter case p-aro-i proof that, áccordin-g to the agreement, the grantee was not to -have the growing crop does not contradict the 'deed-. It would be strange if the execution'of one part of the-agreement In the only way in. which' it caff'be executed should ex-elude proof 'and defeat the other part; -for it must be borne in mind that the deed does not purport to set out the agreement.”

[3, 4] There are decisions holding contrary, apparently, to the rule above mentioned; bu't careful consideration will reveal that but few of them are applicable to the circumstances of this case. In the absence of any reservation or exception, either oral- or otherwise, of a| crop of grain growin go-n land at the time of the otherwise, of a crop of grain growing on land at the time of the to hold that such crop would pass to the purchaser or vendee under the deed; but in a case like this, where there was an oral agreement preceding the execution of the deed, that the growing crop should be retained by the vendor as a part of the consideration which induced the making of the deed itself, there are but very few authorities1 holding that parol proof is not admissible to> show such reservation.

[5] It is argued by respondent that the admission of the oral evidence offered would have the effect of showing a lease of premises conveyed, and which -would conflict with the terms of the deed. In view of the provisions of section 1238, -sub-d. 5, Civ. Code, we know of no reason why a verbal lease for less than one year might not be so created as a part of the consideration for the deed, and whiclh- in no manner would tend to vary' the terms of. such deed. It would- have no more effect on the -deed, under the circumstances of -this -deed, than the making of any other lease on other lands would1 have on the title deed under wni-c-h the lessor held. The fact that it happened to he a part of the same transaction which included1 the deed would- not -alter the effect of the deed-. Neither would the fact that defendant obtained title to the growing wheat in question as a part of the -same transaction which included the deed -prevent defendant from showing hiis title to such wheat by parol, .unless- it should be held that growing wheat is necessarily a part of the land itself, and not the subject of sale as chattels by p-aro-1. The deed in- question o-nly purported to convey title to realty. If ¡the crops- in question were personalty, then it necessarily follows -that' -the- evidence offered would in no w-ay vary -or alter the -effect of the deed. ’ • .

[6] .We are, constrained, to-the view that growing .crops- of grain-rMructus industriales — may be either, realty or personalty, as the parties owning, and itransfering the. land on- which they, grow may -intend.;,.where, the land is conveyed- by, deed, in the absence of. any written o.r-.oral reservation- -thereof, . immature growing crops .pass,, to th,e vendee under the-deed, but that a-vendor may show by parol that such crop-s were -reserved and intended as personalty, not to pass by such. deed, where such reservation wa-s a part -of the consideration which induced the execution of the deed.

The judgment -appealed' from i-s reversed, and the cause remanded.