Grabow v. McCracken

• Decision Date: 12 May 1909
• Citation: 102 P. 84,23 Okla. 612,1909 OK 97
• Parties: GRABOW v. McCRACKEN et ux.
• Court: Oklahoma Supreme Court

102 P. 84

23 Okla. 612, 1909 OK 97

GRABOW v. McCRACKEN et ux.

Supreme Court of Oklahoma

May 12, 1909

Syllabus by the Court.

M. and another conveyed by warranty deed to G. a certain tract of land, for a consideration recited in the deed of $2,900, at said time there being standing upon said land a matured crop of corn; it being agreed by parol that the grantors should gather and remove from said premises said corn as a part of the consideration of said conveyance. The grantee afterwards claimed said crop of corn by virtue of said deed, there being no reservation of said crop in the face thereof. Held, that it might be shown by parol that said corn was reserved by the grantors as a part of the consideration for said conveyance.

Error from District Court, Kingfisher County; C. F. Irwin, Judge.

Action by Johann Grabow against William McCracken and wife. Judgment for defendants, and plaintiff brings error. Affirmed.

Noffsinger & Hinch, for plaintiff in error.

F. P Whistler, for defendants in error.

WILLIAMS J. (after stating the facts as above).

The sole question for determination is whether or not, as a part of the consideration of the deed, it was permissible to reserve by parol the standing, ungathered, matured crop of corn and hay on said land.

In the case of Heavilon v. Heavilon, 29 Ind. 513, the court said: "It is well settled that a vendor, in a suit for the purchase money, may prove, by parol evidence, the amount thereof, the terms of payment and its nonpayment notwithstanding the receipt of the purchase money may be acknowledged in the deed. Now, suppose that the defendant, as a part of the consideration to the plaintiff for the land described in the deed, had agreed that the plaintiff should have a crop of wheat growing on another tract of land owned by the defendant, and had subsequently refused permission to cut and carry it away, would any one contend that the plaintiff could not recover of the defendant the value of the wheat? Or if, as in this case, the plaintiff had harvested the wheat without objection, that the defendant could recover back its value? Does not the same principle apply to this case? Can any logical reason be shown why it should not? Admit that the deed upon its delivery conveyed the growing wheat, and still it was not a fixture which constituted permanently a part of the land; it was the subject of sale by parol, and what rule of law is there to prohibit the defendant from making such sale a part of the same contract by which he would become the owner, or that would convert the deed into an estoppel against parol proof of such sale? If as alleged in the reply, the defendant contracted the wheat to the plaintiff, as a part of the consideration of the land then the execution of the deed was a part of the contract on the part of the plaintiff, and entitled him to the wheat, and no question under the statute of frauds, contended for by the appellee, could arise in the case."

See, also, Harvey v. Million, 67 Ind. 93.

In the case of Austin v. Sawyer, 9 Cow. (N. Y.) 39, the court said: "Whatever may be the rule of construction elsewhere, we are not at liberty here to question the validity of a parol contract for the sale of growing crops. Was there any evidence of such a contract? Rejecting all that passed anterior to and at the time of executing the written contract, the proof is that Wilcox, when treating with the defendant as to the sale of the farm, declared the wheat to belong to the plaintiff. This is sufficient, in my judgment, to authorize a jury to presume a formal and valid contract for the sale of the wheat."

In the case of Backenstoss v. Stahler's Adm'rs, 33 Pa. 251, 75 Am. Dec. 592, the court said: "It is a rule of common law that growing crops are personal property, but pass by conveyance as appurtenant to the land, unless severed by reservation or exception, and this rule has not been altered by statute of frauds and perjuries. A party may show by parol that the growing crops were reserved on a sale of the land, although there may be no exception in the deed."

See, also, Harbold v. Kuster, 44 Pa. 392.

In the case of Neill v. Chessen, ...