Fish v. Capwell

• Decision Date: 24 July 1894
• Parties: FISH v. CAPWELL et al.
• Court: Rhode Island Supreme Court

29 A. 840

18 R.I. 667

FISH

v. CAPWELL et al.

Supreme Court of Rhode Island.

July 24, 1894.

Trespass q. c. f. by George W. Fish against Edward C Capwell and another. Verdict for defendants. Plaintiff excepts. Exceptions sustained.

C. J. Arms, for plaintiff. George T. Brown, for defendants.

STINESS, J. This action of trespass quare clausum fregit was brought by the plaintiff, grantee of Nicholas Brown, to recover damages for the cutting and removal of trees from his close by the defendants, who Justified under a writing, signed and sealed by said Brown, as follows, viz.: "Know all men by these presents, that I, Nicholas Brown, of Coventry, R. I., have sold to Oliver H. Greene, of said Coventry, and Edward C. Capwell, of West Greenwich, R. 1., all of the standing wood on a certain lot of land situated in said West Greenwich, bounded as follows: Northerly by the Greene land, so called; easterly by a wall; southerly by land of James Rathbun; and westerly by land of Edward C. Capwell,— estimated to contain ten acres; to have and to hold the same to said Greene and Capwell, their heirs, executors, and administrators, with two years from the date hereof to cut and remove said wood in, they having paid me the sum of fifty dollars, being in full for said standing wood, the receipt of which is hereby acknowledged. In witness whereof, I hereunto set my hand and seal, at Coventry, R. I., Dec. 13, 1892. Nicholas Brown. (L. S.) In presence of S. W. Griffin " This instrument was not acknowledged and recorded, as required for deeds of real estate by Pub. St c. 173, §§ 3, 4. The plaintiff asked the judge to rule that this was a mere license from Brown, revocable at his will, and that his deed to Fish revoked it The judge denied these requests, and ruled that if the plaintiff knew of this instrument at the time he bought the land, he was bound by it, and could not maintain the action. To these rulings the plaintiff excepted, the verdict being for the defendants.

The first question is, what was the nature of the instrument? Did it convey an interest in land or not? In Greenleaf's Cruise on Real Property (page 55, § 45, note) the learned editor says: "The cases on this much-vexed question 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 the land, within the meaning of the fourth section of the statute of frauds, and must be proved by writing; but where the thing is sold in prospect of separation from the soil immediately, or within reasonable and convenient time, without any stipulation for the beneficial use of the soil, but with a mere license to enter and take it away, it is to be regarded as substantially a sale of goods only, and so not within that section of the statute; although an incidental benefit may be derived to the vendee from the circumstance that the thing may remain for a time upon the land." The same distinction, between permanency of the soil and products bought with a view to their separation from it, is also stated in 1 Greenl. Ev. (14th Ed.) § 271. In Browne on Statute of Frauds (4th Ed, §§ 235-258) this subject is very thoroughly discussed, and the general rule deduced that where the intention is to convey a mere chattel, though it may in the interim be a part of the realty, it is not affected by the statute of frauds; but if it is to confer an exclusive right to the land for a time, for the purpose of making a profit of the growing surface, it is within the statute, and must be in writing, even though the purchaser's real profit may come from the sale of the produce of the land as a chattel. On the other hand, Judge Washburn gives, as an attempt to harmonize decisions, the result that a sale of growing trees or other fructus naturales, when they are not to be severed at once, but are to remain in the soil some definite or indefinite time, is generally regarded as a grant of an interest in the land. 3 Washb. Real Prop. (5th Ed.) 368. Mr. Benjamin states the rule in this way: that, where a sale is made which vests the property at once in the buyer before severance, a distinction is made between fructus naturales and fructus industriales, the former being an interest in the land, which is within the statute of frauds. 1 Benj. Sales (Kerr's Ed.) § 136.

We think the better reason is with the view which holds the sale to carry a chattel interest and not an interest in the land. Evidently, the parties to a sale of standing trees, as in this case, have in mind the trees as timber, and not the land. They are not bargaining for occupation, and would not often think to clinch the trade by deed. They have...