Cannon v. Matthews

• Decision Date: 06 May 1905
• Citation: 87 S.W. 428,75 Ark. 336
• Parties: CANNON v. MATTHEWS
• Court: Arkansas Supreme Court

87 S.W. 428

75 Ark. 336

CANNON v. MATTHEWS

Supreme Court of Arkansas

May 6, 1905

Appeal from Crawford Circuit Court JEPTHA H. EVANS, Judge.

Reversed.

Reversed and remanded for new trial.

Sam R Chew, Henry L. Fitzhugh and J. Wythe Walker, for appellant.

The strawberry plants, after they were sold, became chattels, and were subject of replevin. 87 Cal. 313; 41 Ill. 466; 32 Kan 167; 26 Me. 126; 20 Mo. 457; 9 Cow. 40; 8 Am. & Eng. Enc. Law, 303; Cobbey, Replevin, § 353; 1 Met. 27; 1 N.J.Eq 562; 3 Ohio St. 438; 33 Pa.St. 251; 15 Ind. 483; 36 Barb. 415; 33 Pa.St. 251; 1 Warvelle, Vendors, § 163; 16 Ark. 511.

OPINION

MCCULLOCH, J.

The question involved in this appeal is whether growing strawberry plants attached to the soil can be the subject of replevin. Appellant, who was plaintiff below, sued in replevin for the strawberry plants growing on the land of appellee, claiming the plants under an alleged parol contract for the purchase of same. Defendant answered, denying that he had agreed to sell the plants in controversy to appellant.

At the trial below there was testimony tending to show that appellee had verbally agreed to sell to appellant all the strawberry plants on a certain tract of land, and that, after appellant had removed a part of them, a controversy arose between them as to the number of plants appellee had agreed to sell, and this suit was brought in consequence of the disagreement.

The court held that the suit could not be maintained, and directed the jury to return a verdict in favor of the defendant, which was done.

Replevin is strictly a possessory action for the recovery of personal property, and, in order to recover, the plaintiff must be the legal owner, and entitled to the possession at the time of the commencement of the action. Cobbey on Replevin, §§ 27, 73. So the right of recovery in this case must turn upon the question whether the strawberry plants sued for are to be treated as chattels, or part of the land upon which they were growing.

Many distinctions abound in the books as the rules in determining the character of property in fruits of the soil attached thereto, whether they are to be considered chattel interests or as a part of the realty; the distinction most frequently referred to being that between such as are natural products of the soil, fructus naturales, and fructus industriales, though this distinction is rejected by many courts, and by others adopted.

The pioneer English decision on the subject seems to have been one by Chief Justice Treby at nisi prius, reported by Lord Raymond in 1 Ld. Raym. 182 (Littlewood v. Smith), in which it was said that timber growing upon land might be sold by parol "because it is a mere chattel;" the court rejecting all distinctions between natural and industrial products. This statement is by Mr. Baron Hullock in Scovell v. Boxall, 1 Young & J. 396, pronounced to be mere dictum, but the doctrine is later fully approved by English judges.

In the case of Marshall v. Green, 1 C. P. D. 35, the distinction between fructus naturales and fructus industriales, as a test of the application of the Statute of Frauds, was rejected, and the rule announced by Treby, C. J., fully approved.

In Browne on Statute of Frauds, § 254b, the author, in discussing the above cited case and the tests therein referred to, says: "Those tests had, it is true, the sanction of previous decisions, but neither of them had proved satisfactory or been uniformly followed. The doctrine which laid down one rule for the sale of fructus naturales, and another for the sale of fructus industriales, is objectionable, because founded narrowly upon consideration of the ownership of the crop, not at all upon consideration of the conditions of sale." The same learned author says (§ 257a): "Where such an agreement (for sale of growing products of the soil) makes part of the transaction, it seems clear that an interest in land is contracted for and agreed to be given. But where, as in Marshall v. Green, there is no agreement that the goods should remain on the vendor's land, the vendee's right to come in and take away what he has bought not depending upon any contract or agreement, but being a mere incident of his purchase arising by implication of law, and not subject to revocation by the owner of the land, the contract is for the sale, not of land, but of goods, and this independent of the nature of the growth sold."

Prof Greenleaf says: "Though all that grows on the soil, whether spontaneously or by culture, ordinarily passes with the land, yet trees, grass crops and other things fixed to the soil, and so part of the realty, may be the subject of a separate sale in prospect of severance, and in that case will be regarded as personal chattels, if so treated by the parties. The cases on this much vexed subject are extremely contradictory; but the principle now most generally recognized seems to be this, that in contracts for the sale of things annexed to and growing upon the freehold, if the vendee is to have a right to the soil for a time, for the purpose of further growth and profit of that which is the subject of sale, it is an interest in land within the meaning of the fourth section of the...