Kingsley v. Holbrook

Sargent, J.

In Massachusetts and Maine and some other States, the courts have held, as stated in I Greenl. Ev. sec. 271 and note, that a sale of trees growing upon land is not a sale of real estate, unless it is contemplated that they shall remain so as to receive profit and growth from the growing surface of the land; unless the vendee was to have some beneficial use of the land in connection with the trees. Where such is the case, then a sale of standing trees is a sale of an interest in land, otherwise not. The authorities cited in the plaintiff’s brief are in favor of the same view.

This doctrine had its origin, as it would seem, from 1 Ld. Raymond, 182, where Treby, C. J. reported to the other judges that the question had arisen before him at nisi prius, whether a sale of timber, growing upon land, ought to be in writing by the statute of frauds, or might be by parol; and that he had ruled that it might be by parol, because it is but a bare chattel; and it is said that to this opinion Powell, J. agreed. Since then the decisions have been very conflicting both in England and in this country. Many decisions in regard to growing crops are quoted as bearing upon the question as to whether growing trees are to be considered personal property, or an interest in land. These decisions are no less conflicting, however, and aid us very little in establishing any general rule based upon principle.

But we find this distinction noted in Dunne v. Ferguson, cited in Stephens, N. P., 1971, from 1 Hayes (Irish) R. 542. The case was trover for turnips. In October 1880, the defendant sold to the plaintiff a crop of turnips which ho had then recently sown, for a sum less than ten pounds. During the winter following and while the turnips were still in the ground, the defendant severed and carried away considerable quantities of them which he converted to his own use. No note in writing was made of the bargain. It was contended for the defendant, that trover did not lie for things annexed to the freehold, and that the contract was of no validity for want of a note or memorandum in writing, pursuant to the statute of frauds.

• In deciding the case Joy, Chief Baron, (Barons Smith, Pennefeather and Foster concurring,) says : "The general question for our decision is, whether there has been a contract for an interest concerning lands within the second section of the statute of frauds; or whether it merely concerned goods and chattels : and that question resolves itself into another, whether or not a growing crop is goods and chattels. In one case it has been held that a contract for potatoes did not require a note in wilting because the potatoes were ripe; and in another case the distinction toned upon the hand that was to dig them, so that if dug by A. B. they were potatoes, and if by C. D, they were an interest in lands. Such a course always involves the Judge in perplexity and the case in obscurity. Another criterion must therefore be had recourse to; and, fortunately, the later cases have rested the matter on a more rational and *319 solid foundation. At common law growing crops were uniformly held to be goods, and they were subject to all the leading consequences of being goods, as seizure in execution, &c. The statute of frauds takes things as it finds them, and provides for land and goods according as they were so esteemed before its enactment. In this way the question may be satisfactorily decided. If before the statute a growing crop has been held to be an interest in lands, it would come within the second section of the act, but if it were only goods and chattels, then it came within the thirteenth section. *' * And, as we think that growing crops have all the consequences of chattels and are, like them, subject to be taken in execution, we must rule the points saved for the plaintiff.”

Growing annual crops for many purposes are, and always have been, considered chattels. They go to the executor upon the death of the owner of the land, and not to the heir, and they may be levied on and sold upon execution like other personal chattels. And this being the case when the statute of frauds was enacted, they continued to be so treated and may properly be so now. But the word land is a comprehensive term including standing trees, buildings, fences, stones, and waters, as well as the earth we stand on-, and all pass under the general description of land in a deed. Standing trees must be regarded as part and parcel of the land in which they are rooted and from which they draw their support, and, upon the death of the ancestor, they pass to the heir, as a part of the inheritance, and not to the executor, as emblements, or as chattels. Neither can they be levied upon and sold on execution, as chattels, while standing. This being the case when the statute of frauds was passed, it has since then been properly held, we think, that a sale of growing trees, with a right at any future time, whether fixed or indefinite, to enter upon the land and remove them, does convey an interest in the land. It has been so held in this State, Putney v. Day, 6 N. H. 430; Olmstead v. Niles, 7 N. H. 522; and more recently in other States, Green v. Armstrong, 1 Denio, 550 ; Warren v. Leland, 2 Barb. S. C. 614; Pierpont v. Barnard, 5 Barb. S. C. 364; Dubois v. Kelley, 10 Barb. S. C. 496; Buck v. Pickwell, 27 Vt. 157 ; Yeakle v. Jacob, 33 Penn. St. R. 376. Also in England, Scorell v. Boxall, 1 Younge & Jer. (Ex.) 396; Teal v. Auty, 2 Brod. & Bing. 99.

I think, therefore, that, upon the weight of authority and upon reason, the doctrine early established in this State, that a sale of growing timber is ordinarily a sale of an interest in land, is sound and ought to be sustained. Our statute, providing for the sale of timber or wood growing or standing on any land, separate from the land, by an administrator under a license from the judge of probate, also declares that such timber or wood shall be deemed to be real estate. Rev. Stats. ch. 164, sec. 6.

Let us examine the deed in this case and see if it is sufficient to convey an interest in land. Under the law of 1791, in relation to conveyances, it was held, that, although a sale of timber to be removed in a certain time conveyed an interest in land, so that the conveyance must *320 be in writing, yet it need not be by deed. Putney v. Day, 6 N. H. 430; French v. French, 3 N. H. 234; Pritchard v. Brown, 4 N. H. 397; Olmstead v. Niles, 7 N. H. 522. In the last case cited, Parker, J. says : " Whether the statute of 1829, which repealed the act of 1791, has made any alteration in this respect, is a question which does not arise in this case.”

But that question soon after arose, and it was held, that, by the law of 1829, no conveyance of any interest whatever in real estate, could be made, except by deed duly signed, sealed, and witnessed by two witnesses ; that, without all these requisites, the deed, or writing, conveyed absolutely nothing to any person; and that it conveyed nothing as against anybody but the grantor and his heirs, unless it were also acknowledged and recorded. Stone v. Ashley, 13 N. H. 38; Underwood v. Campbell, 14 N. H. 393. In the last case cited it is held, that, under the statute of 1791, a seal is essential in order that an instrument may operate as a conveyance under the statute ofuses, 27 Hen. 8 , ch. 10, which has been adopted in this State; and that a seal is also necessary that the writing may operate as a conveyance by way of bargain and sale under the same statute of 1791.

The deed in this case is sufficient under the statute of frauds to convey an interest in land, for all that statute requires is that the conveyance be in writing. This deed.is also sufficient under the statute of 1791, as interpreted in Underwood v. Campbell, supra, because it is sealed. But it would be void under the statute of 1829, according to the interpretation of Stone v. Ashley, supra, because not witnessed by two witnesses, for this deed is not witnessed at all.

Does the law of the Revised Statutes change the law of 1829 in this respect? The law of 1829 enacted that no deed of bargain and sale, &c., should be valid unless executed in manner aforesaid, which was by being signed, sealed, and witnessed by two witnesses. N. H. Laws, 1830, p. 533. The Revised Statutes, chap. 130, sec. 3, provide that every deed or other conveyance of real estate shall be signed and sealed by the party granting the same, attested by two or more witnesses, acknowledged, &c., and recorded, &c.; and sec. 4, provides that no deed of bargain and sale, mortgage or other conveyance of any real estate, or any lease, &c., shall be valid to hold the same against any person but the grantor and his heirs, unless such deed or lease be attested,acknowledged and recorded as aforesaid. It will be seen that the only change contemplated in the Revised Statutes was, that a deed not attested by two witnesses might be good as against the grantor and his heirs, whereas by the statute of 1829, it was expressly provided that it must be thus attested in order to be good against anybody. As the law now is, the conveyance will not be good, unless signed and sealed, to convey anything to anybody, but it may be good as against the grantor and his heirs without being witnessed, acknowledged, or recorded. Hastings v. Cutler, 24 N. H. 481. This deed from the Holbrooks to Conant was therefore sufficient, under the Revised Statutes, being signed and sealed, as against the grantor and his heirs, so that the standing timber which constituted an interest in land passed by this deed to Conant.

*321 The next question is, Was the written agreement or defeasance which was made at the same time with the deed properly admitted ? Our statute (Rev. Stats, ch. 131, sec. 2,) provides that "no conveyance in writing of any lands shall be defeated, nor any estate encumbered by any agreement, unless it is inserted in the condition of the conveyance and made part thereof, stating the sum of money to be secured, or other thing to be performed.” The question might perhaps arise, whether this does not refer to mortgages only. But we think'it is not thus limited. In the original law as passed in 1829, (N. H. Laws of 1830, p. 488,) it was provided that no title, or estate, &c., in any lands, &o., should be " defeated or encumbered by any agreement whatever, unless such agreement, or writing of defeasance, shall be inserted in the condition of said conveyance, and become part thereof, stating the sum, &c., to be secured, or the other thing or things to be performed.” There was evidently no intention to change this statute in the revision, and its terms are clearly broad enough in the original act, and must have been intended to cover a case like this.

The written agreement, or defeasance, should not have been admitted, and, of course, the other evidence in regard to the extension of the time of getting off the timber was immaterial. The result is that the deed conveyed the timber absolutely, and this accompanyingpaper was a contract upon which Conant might have been liable to the Holbrooks, if he did not perform its conditions, and that agreement might be modified by parol. If there had been no modification of that contract, then Conant was to forfeit all the timber he did not get off in three years, and if he did not abide by that contract he would be liable in damages for a breach of it. But if it was modified and the time extended, then he might not be liable. But the deed conveyed the timber to Conant absolutely.

If the parties here intended to make a conditional deed, the condition should have appeared in the deed, and then the title or interest would have been held subject to that condition, as in any other case of a conditional deed.

This writing was also improperly admitted upon another ground. Since we hold that the property conveyed was an interest in land, which can only be conveyed by an instrument under seal, this writing, in order to have operated as a defeasance, must have been also under seal, which is not the fact; so that, independent of our statutes, the writing was not admissible in evidence. Lund v. Lund, 1 N. H. 41; French v. Sturdivant, 8 Greenl. 246; Bickford v. Daniels, 2 N. H. 71; Runlet v. Otis, 2 N. H. 167; Wendell v. The N. H. Bank, 9 N. H. 404, 419.

Let us next see whether the assignments from Conant to Pratt, and from Pratt to Kingsley, were sufficient to pass the title on this timber. These assignments are in writing and signed by the grantor, but are not sealed, witnessed or acknowledged. The assignments are sufficient, under the statute of frauds, to pass an interest in land. But, under the Revised Statutes, they would not be sufficient to pass an interest in real estate, upon the authority of Stone v. Ashley, and Underwood v. *322 Campbell, supra, not being under seal. And it becomes necessary here to review the grounds of those decisions, because, upon another ground, we hold these assignments to be sufficient.

It is held in Bank of Lansingburg v. Crary, 1 Barb. S. C. 542, that growing trees or grass may be severed in law from the land,and become personal property without an actual severance; as where the owner of the land in fee, by a valid deed of conveyance in writing, sells the trees or grass to a third person, or where he sells the land, reserving the timber trees, or grass. In both these cases, the timber, trees, and grass become chattels, distinct from the soil, and go to the executor instead of to the heir. For in contemplation of law they are abstracted from the earth. Toller on Executors, 194; 3 Bac. Ab. 64. So, in Green v. Armstrong, 1 Denio, 550 , it is said, an interest in that which is land can only be created by deed, or written conveyance, and no contract for the sale of such an interest is valid, unless in writing. It is not material and does not affect the principle, that the subject of the sale will be personal property when transferred to the purchaser. If, when sold, it is, in the'hands of the vendor, a part of the land itself, the contract is within the statute.

In Warren v. Leland, 2 Barb. S. C. 613, it is held, (Paige, D), that growing trees, being parcel of the land, are within the statute of frauds, and cannot be sold or conveyed except by deed, or conveyance in writing, but that such growing trees by a valid sale in writing, by the owner of the fee in the land, are severed, in contemplation of law, from the land and become chattels personal without any actual severance; and, after such severance from the land by the original sale, maybe conveyed like any other personal property, by parol; and that when such conveyance of the growing trees by the owner of the fee, does not limit the time for the entry of the grantee upon the land to cut and remove the trees, a right of entry passes for an indefinite or reasonable time for the removal of all the trees. It is held that growing trees, when they are the subject of an ownership distinct from the ownership of the soil, ai’e no longer deemed as annexed to the realty, but are regarded as entirely abstracted or divided therefrom. They' are then regarded as chattels personal merely, like growing crops of grain or vegetables, which are the annual produce of labor and of the cultivation of the earth. Evans v. Roberts, 5 B. & C. 829; Stukely v. Butler, Hob. 300, (*168.)

This distinction is noticed by Perley, C. J., in Keyzer v. School District, 35 N. H. 480, where he says : " Certain individuals united to erect a building for a school house on land belonging to another. This being done by license of the land owner, the building would be personal property, and would belong to those who erected it. The proprietors of the building would have no interest in the land, the building would be' mere personal property, and each proprietor might sell his share without deed, or other writing, as in case of other personal property owned in common with others”. See cases cited.

The assignments in this case, then, were good to convey the interest in the trees, such interest having been severed by the first sale by the *323 Holbrooks, who then owned the fee in the land, and, having thus become chattels personal, Kingsley might properly bring this suit. Cudworth v. Scott, 41 N. H. 456; Plummer v. Prescott, 43 N. H. 277. The verdict will not be set aside because the writing of defeasance was wrongfully admitted, as the ruling was against the prevailing party.

Judgment on the verdict.