Flynt v. Conrad

• Decision Date: 31 January 1867
• Citation: 61 N.C. 190,93 Am.Dec. 588
• Court: North Carolina Supreme Court
• Parties: WILLIAM FLYNT, Ex'r v. JAMES H. CONRAD.

61 N.C. 190

93 Am.Dec. 588

WILLIAM FLYNT, Ex'r

v.JAMES H. CONRAD.

Supreme Court of North Carolina.

January Term, 1867.

Parol evidence is competent to show that a crop of corn, growing upon land at the time that the latter was conveyed by deed, did not pass by the deed, but was reserved by the vendor.

Distinction in this respect between fructus industriales and fruit upon trees, &c., discussed and stated.

( Brittain v. McKay, 1 Ire., 265, Twidy v. Sanderson, 9 Ire., 5, Manning v. Jones, Bus., 368, Daughtry v. Boothe, 4 Jon., 87, cited and approved.)

TROVER, for corn, tried before his Honor, Fowle, J., at Fall Term, 1866, of FORSYTH Superior Court.

The facts were that the plaintiff's testator, on the 23d June, 1865, executed to the defendant a deed in fee for a tract of land on which there was a growing crop of corn. Evidence of various acts and admissions was given to show that the crop had been reserved by the vendor. The defendant was shown to have converted it; and a demand and refusal were also shown.

The defendant's counsel asked his Honor to charge that the corn and everything else upon the land passed by the deed, and that parol declarations by the defendant could not revoke the deed, or raise any inference from which a tenancy at will could be set up.

His Honor charged the jury that a deed for land passed everything upon the land except what was legally reserved; and that a growing crop of corn could be sold by parol so as to pass the title; and could be reserved by parol so that the reservation would be binding; that if they were satisfied in this case that it was the intention of the parties at the time the deed was executed, that only the land should pass, and the growing crop should continue to be the property of the testator, the plaintiff would be entitled to recover; that the conduct and conversation of the parties afterwards, and the occupation of the land by the testator after the deed was executed, might be considered by them as evidence of what the intention of the parties was; and that if they were not satisfied that it was the intention of the parties that the crop should be reserved, the defendant would be entitled to their verdict.

Verdict for the plaintiff; Rule for a new trial; Rule discharged; Judgment, and Appeal.

Gilmer and T. J. Wilson, for the plaintiff .

Bragg and W. L. Scott, for the defendant .

PEARSON, C. J.

We concur in the opinion of his Honor for the reasons given by him.

It is said by the court in Brittain v. McKay, 1 Ire., 265: “The law makes a pointed distinction between those profits which are the spontaneous products of the earth or its permanent fruits, and the corn and other growth of the earth which are produced annually by labor and industry, and thence are called ‘ fructus industriales.’ The latter, for most purposes, are regarded as personal chattels. Upon the death of the owner of the land before they are gathered, they go to his executor and not his heir. Upon the termination of an estate of uncertain duration, by an act other than that of the lessee, they belong to him as personal chattels, and do not go over to the owner of the soil. They are liable to be seized and sold under execution as personal chattels, and a sale of them while growing is not a sale of land or any interest in or concerning land, under the Statute of Frauds, but a sale of goods.”

Thus it is seen that a growing crop is regarded as a personal chattel. The statute (Rev. Code, c. 34, s. 21,) puts them on the same footing in another very important partic ular, and still farther lessens the difference by making it larceny to steal any Indian corn, wheat, &c., growing in a field. So that the only difference now seems to be that the one never was attached to land or has been severed, whereas the other is not severed; and the legal effect of this is, that when land is conveyed the presumption is that wheat, for instance, that has been cut and remains shocked in the field, does not pass with the land, whereas, if it has...