19 Mich. 82 (Mich. 1869), Vanderkarr v. Thompson

Citation:19 Mich. 82
Opinion Judge:Cooley, Ch. J.
Party Name:Joseph Vanderkarr v. James L. Thompson
Attorney:Hugh McCurdy, for plaintiff in error. Gould & Lyon, for defendant in error.
Case Date:July 12, 1869
Court:Supreme Court of Michigan

Page 82

19 Mich. 82 (Mich. 1869)

Joseph Vanderkarr


James L. Thompson

Supreme Court of Michigan

July 12, 1869

Heard July 9, 1869

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Error to Shiawassee Circuit.

This was an action of trespass brought in the Circuit Court for the County of Shiawassee, by James L. Thompson v. Joseph Vanderkarr, for entering upon the land in the possession of the plaintiff and cutting and carrying away a quantity of wheat. The plaintiff's possession had been obtained under written contract for the purchase of the land on which the wheat was growing at the time of the purchase. The defendant pleaded the general issue and gave notice of the sale of the land by him to the plaintiff; that the wheat in controversy was growing on the land and had been expressly reserved at the time of the sale; and that in pursuance of the agreement the defendant had entered upon the land and harvested and carried away the wheat. On the trial a witness who had testified that he was present at the making of the contract, was asked whether "any part of the wheat then growing on the land was reserved from the operation of the contract?" and "what was said, if anything, between the parties immediately after signing the contract and before they separated, about the wheat then growing on the land?" The questions were objected to, as tending to contradict the terms of the written contract, and were excluded. The plaintiff had judgment; which the defendant below brings into this court by writ of error.

Judgment affirmed with costs.

Hugh McCurdy, for plaintiff in error.

The issue made by the pleadings was, that the defendant cut and carried away the plaintiff's wheat,--the defendant replies, "if I did so, I reserved the wheat growing on the land when I sold it to you, and cut and carried away by your consent."

The counsel for the plaintiff in the court below, objected to the evidence of the defendant to show this fact, as incompetent, and the Circuit Judge so ruled, that the evidence offered tended to contradict the written contract given in evidence in the cause, and excluded the evidence. We claim the court erred in this ruling, for the following reasons:

1. By the common law growing crops are personal property, but pass by conveyance as appurtenant to the land unless severed by reservation, or exception. The nature of such...

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