Groth v. Stillson

• Court: Court of Appeal of Michigan
• Writing for the Court: QUINN
• Citation: Groth v. Stillson, 20 Mich.App. 704, 174 N.W.2d 596 (Mich. App. 1969)
• Decision Date: 09 December 1969
• Docket Number: Docket No. 6765,No. 3,3
• Parties: , 7 UCC Rep.Serv. 429 Elwyn G. GROTH, Plaintiff-Appellee, v. Ronald A. STILLSON and Diane A. Stillson, Defendants-Appellants

Page 596

174 N.W.2d 596

20 Mich.App. 704, 7 UCC Rep.Serv. 429

Elwyn G. GROTH, Plaintiff-Appellee, v. Ronald A. STILLSON and Diane A. Stillson, Defendants-Appellants.

Docket No. 6765.

Court of Appeals of Michigan, Division No. 3.

Dec. 9, 1969.

Released for Publication March 4, 1970.

Harry Lieffers, Jr., Grand Rapids, for appellant.

James W. Bussard, Grand Haven, for appellee.

Before GILLIS, P.J., and McGREGOR and QUINN, JJ.

QUINN, Judge.

By written agreement dated August 12, 1965, plaintiff sold to third parties all of the Scotch pine, French green variety, and the spruce trees situated on land owned by plaintiff. The agreement granted third parties the right of entry to spray, prune, care for, harvest and remove the trees until all saleable trees reached their proper growth and were harvested. The agreement gave plaintiff the right to sell any property on which no such trees were growing, and the latter, after the trees were harvested. August 30, 1966, plaintiff conveyed all of the land to defendants by warranty deed with no reservations or exceptions.

When defendants claimed they had no notice of the sale of trees to third parties, plaintiff instituted this action for reformation of the deed to defendants to include a reservation of the trees. The trial court found defendants had notice of the sale of the trees to third parties prior to their deed and defendants have failed to demonstrate that this finding is clearly erroneous. We cannot set aside this finding. GCR 1963, 517.1.

From grant of reformation below, defendants appeal.

By the agreement of August 12, 1965, plaintiff sold Christmas trees off her land. The trial court took judicial notice of the fact that Christmas trees require annual care for six to eight years while they mature and that each tree results in a single crop. He held that such a crop is the fruit of industry rather than of nature alone and is severable from the land by sale.

It is apparent from the language employed in the agreement of August 12, 1965 that plaintiff and the third parties considered these trees as a crop. Third parties had a right of entry to spray, prune, care for, as well as to harvest and remove and such right continued until all saleable trees matured and were harvested. Any land from which the trees were removed was alienable by plaintiff.

The foregoing holding of the trial court and the intention of the parties to the sale of trees agreement as evidenced by the language thereof comport with the statutory definition of sale of certain things in or attached to realty which is deemed the sale of goods. M.C.L.A. § 440.2107 (Stat.Ann. 1964 Rev. § 19.2107) reads in part:

'(1) A contract for the sale of timber, minerals or the like or a structure or its materials to be removed from realty is a contract for the sale of goods within this article if they are to be severed by the seller but until severance a purported present sale thereof which is not effective as a transfer of an interest in land is effective only as a contract to sell.

(2) A contract for the sale apart from the land of growing crops or other things attached to realty and capable of severance without material harm thereto but not described in subsection (1) is a contract for the sale of goods within this article whether the subject matter is to be severed by the buyer or by the seller even though it forms part of the realty at the time of contracting, and the parties can by identification effect a present sale before severance.'

Timber means trees, felled or...