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that it must conclude it: though but for that case I should have been more inclined to think that stock on the farm meant movable stock.”

That shows that Lord Ellenborough decided upon the words “ stock upon my farm” and nothing else.

Then the point seems next to have come, in 1825, before Lord Gifford, Master of the Rolls, in Blake v. Gibbs (note to Vaisey v. Reynolds, 5 Russ. 13). That was the case of a testatrix who was tenant for life only of a plantation in Jamaica on which the growing crops in question stood. The only question was whether the word “ stock" included the growing crops. By her will the testatrix devised “ all and every her negro, mulatto, and other slaves, men, women, and children, and all her cattle, mules, horses, asses, and other live and dead stock ” upon the plantation. The question was, what was the meaning of the words " and other live and dead stock.” It was argued on the authority of Cox v. Godsalve and West v. Moore, 8 East, 339, that a bequest of the stock upon a farm would include growing crops. In delivering judgment, Lord Gifford says this (5 Russ. 16): “ The two cases, which have been cited, prove, that the emblements are part of the stock, and will pass under the description of stock on a farm ; and I cannot help thinking that the claim of the specific legatee is stronger here than in either of those cases, from the circumstance of the testatrix having been only tenant for life.”

Then the point seems to have come, in 1828, before Sir John Leach in Vaisey v. Reynolds, Ibid. 12, and what he says is very odd. There the gift was of "all and every my book debts, moneys in hand, stock in trade in my dwelling-house, shop, and malting; and also my farming stock of every kind and description whatsoever; ” and Sir John Leach held that the growing crops did not pass under the gift of the farming stock, as against the devisee of the land, because there was no gift of the residuary personal estate to the legatee of the farming stock. I must say I think he was entirely wrong. No one would hold that a general bequest of personal estate would pass growing crops as against the devisee of the real estate, - that under a gift of the real estate to A. and of the personal estate to B., A. would not take the growing crops, yet that is the substance of Sir John Leach's decision. As Lord Holt's decision in Cox v. Godsalve is reported, we cannot tell what his reasons were ; but Lord Ellenborough says, in West v. Moore, that a gift of the “stock on my farm” will pass the growing crops as against the devisee of the land ; and Lord Gifford, in Blake v. Gibbs, also says that the growing crops will pass under the description of stock on a farm. But Sir John Leach says this (5 Russ. 17): “In the case of Cox v. Godsalve, where the words of the gift to the executor were

stock of my farms, there were other words in the gift which comprised all personal estate. And in West y. Moore, where the words of the gift to the executor were,"stock upon my farm,' the whole personal estate of every nature and kind was, in terms, comprised in the gift. These cases were between the executor and the devisee of the land.”

stock up my dwellino and every min

pinion that these were the words words, passes the

That is not quite correct: in Cox y. Godsalve it is true that the mother, who was the legatee of the stock, was one of the executors, but the stock was not given to her as an executor. Then Sir John Leach goes on : “ And the rule is, that, although crops on the ground are personal estate, and, generally speaking, pass to the executor, yet, as between the executor and the devisee, the devisee will take them with the land, unless the intention of the testator appears to be otherwise, In these two cases such intention seems to have been inferred, rather because the executor was plainly meant to take the whole personal estate, than from the mere force of the words stock of my farm,' or "stock upon my farm.'All I can say is, having read the case before Lord Ellenborough, I think Sir John Leach made a mistake. Lord Ellenborough says “stock upon my farm,” in so many words, passes the growing crops, showing that those were the words he relied upon. I am therefore of opinion that the distinction taken by Sir John Leach between those two cases and the case before him is quite untenable. Then the last case is Rudge v. Winnall, 12 Beav. 357, in 1849, before Lord Langdale, M. R. There the testator devised real estate to his trustees and executors, in trust for A., and bequeathed “ all his live and dead stock" and the whole of his personal estate to the same trustees and executors upon trusts for various persons. Vaisey v. Reynolds, 5 Russ. 12, was cited in the argument, and the Master of the Rolls held that the growing crops formed part of the personal estate of the testator ; but I cannot find from the report whether he so decided on the ground of the gift of the whole personal estate or of the gift of " live and dead stock;" consequently that case does not help me any further than the previous cases.

In the present case the gift is in these terms: “I give unto my granddaughter Catherine Williams the sum of £1,000 and all the household furniture, farming stock, goods, chattels and effects, which shall be in and about Froudeg at the time of my decease.” Now, the words “ farming stock” would of themselves pass the growing crops, and they would not form part of his general personal estate as against the legatee of the farming stock. The question is whether they pass to the legatee as against the devisee of the real estate. As Lord Ellenborough said in West v. Moore, the question is one of intention. What he says is this (8 East, 343): “ The case of Cox v. Godsalve, before Lord Holt, is in terms so much the same as this, that it must conclude it: though but for that case I should have been more inclined to think that stock on the farm meant movable stock.” By which he means that Cox v. Godsalve decided that stock on the farm included stock that was not movable. Then, after saying that, as against the executors, the standing corn goes to the devisee of the land, he proceeds: 6. This is founded upon a presumed intention of the devisor in favor of his devisee. But this again may be rebutted by words which show an intent that the executor shall have it.” Then he notices the case before Lord Holt, observing that the only difference between that case and the

lect woulă stock , "Oudeg stock, as the sun

one before him was that in the former case the legatee of the stock was not the sole executor, and that there was no material distinction between the two cases : and he winds up by saying, “and a construction having been once put upon these words, the question is now concluded.” So that he says the question was concluded by the construction put upon the words “ stock on the farm,” that is, without reference to any other words.

Now, in my opinion, a construction having been put upon these words, I must treat the question as concluded. I must, therefore, hold that in using the words “ farming stock in and about Froudeg,” the testator intended to include, and that they did include, the growing crops, and I so decide.

Plik soek hio laved' TERHUNE v. ELBERSON.
we fietw as quain. [Reported 2 Penning. 533.]

eta The action below was an action of trespass, for cutting down and w poco taking away eighty bushels of rye, and twenty bushels of wheat of the Ikaw plaintiff below, Elberson, by the defendant below, Terhune, the 7th

July, 1810.

The defence set up, was, that the defendant below purchased the land on which he cut the wheat and rye of the plaintiff below, the 4th May, 1810, and had gone into possession of the premises under the said deed, on which the wheat and rye was cut at the time of cutting it, which fact appeared by the record.

It was contended by the plaintiff below, that although he did sell the land on which the wheat and rye was cut, to the defendant, in May, and give him possession thereof, yet that this sale did not convey the wheat and rye growing on the land. That whoever sowed in peace should reap in peace. The cause was tried by a jury, and verdict and judgment for the plaintiff for $30, with costs. " BY THE COURT. The doctrine of emblements does not apply to this

case. The sale and conveyance of the land in fee simple, carried with sit the wheat and rye growing on the land, unless the wheat and rye was specially reserved, which was not pretended.

Let the judgment be reversed.


[Reported 39 II. 28.) Writ of error to the Circuit Court of Marion county; the Hon. Silas L. Bryan, judge, presiding.

The case is stated in the opinion of the court :
Messrs. Willard and Goodnow, for the plaintiff in error.
Mr. H. K. S. O'Melveny, for the defendant in error.

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 shubbery 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 Ill. 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 had 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."


(Reported 54 Me. 309.] ASSUMPSIT on account annexed, for $60, for money paid by the plaintiff to the defendant, for logs and down timber, the title to which, the plaintiff alleged, was not in the defendant at the time of sale. The writ also contained a count for money had and received for same amount.

It appeared from the report that the defendant owned, in the summer of 1863, a timber lot in Hermon; that he cut down a large number of hemlock trees thereon, peeled the bark therefrom and removed it from the lot, — intending to prepare the trees by cutting off the tops and haul them off as logs to be sawed during the ensuing winter. The trees were severed from the stumps, and they lay as they fell, with the tops on. In the felling the choppers endeavored, so far as practicable, to have them lie in a good position for peeling and afterwards hauling them off.

In the fore part of the fall of the same year, the defendant conveyed the lot by deed of warranty, without any reservations, to one Works. On the 20th of the following November, after Works had entered into possession of the lot under his deed, the defendant sold the hemlocks thus cut, to the plaintiff, by a bill of sale. To recover back the money paid for the bill of sale, this action was brought.

Previous to the commencement of this suit, the plaintiff demanded the hemlocks of Works, who refused to deliver them or permit the plaintiff to take them. Thereupon the plaintiff sued Works in trover therefor, and entered his action in court, which action was continued from term to term for several terms, when that action was by agree

1 See Noble v. Bosworth, 19 Pick. 314, post ; Strong v. Doyle, 110 Mass. 92. *****

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