Hasceig v. Tripp

• Decision Date: 26 April 1870
• Citation: 20 Mich. 254
• Court: Michigan Supreme Court
• Parties: James Tripp v. Frederick Hasceig

20 Mich. 254

James Tripp v. Frederick Hasceig

Supreme Court of Michigan

April 26, 1870

Heard April 19, 1870 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Kalamazoo Circuit.

James Tripp on the 13th day of December, 1865, conveyed to Frederick Hasceig a farm in Kalamazoo County, on which at the time of the execution and delivery of the deed there was a field of standing corn; which remained unharvested until the spring following, when the defendant gathered it. The plaintiff claims that the corn having been left standing in the field, after the proper season for harvesting, at the time of the conveyance of the premises, did not pass under the deed, and brings this action of trover for the conversion of it by the defendant. The questions in controversy were presented in the Court below upon exceptions to the charge of Circuit Judge, namely:

1. "As between grantor and grantee by warranty, the law gives to the latter the growing crops, as in case of the wheat in this case, sown among the ripe corn that same fall. We think the law is equally explicit as to crops ripe and ready for harvest in their natural season. We apprehend the rule is not affected by the fact that the corn is alive and drawing nourishment from the soil, or dead, yet standing implanted therein, any more than by the fact that a tree standing in the forest is dead or alive."

2. "If the vendor, before sale and delivery, has operated a severance, as by harvesting and burying potatoes on the premises or boxing them up, then the property in them would not be transferred by the deed. Without this we think he is bound to take such property and appropriate it to his own use, before delivering the possession by deed, or else to shield his rights by actual reservation in the conveyance itself."

3. "We think then, that standing upon authority where we have it, and reasoning upon analogy where direct authority fails us, we must conclude that when a ripe or over ripe crop is left standing in the field, at the time a deed is executed and delivered conveying the land on which such crop stands, and there is no reservation in the deed, the crop passes as a part of the realty or freehold."

4. "Any contemporaneous agreement in parol between the parties, upon no new and independent consideration in reference to property affected as an interest in the land directly by the deed, can have no validity as affecting rights vested by the deed in either party; both because a deed cannot thus be attached by parol, and because such agreement, if before, is merged in the deed; if after, is without consideration."

These charges were excepted to in the Court below; the jury found for the defendant, and the judgment entered thereon is brought into this Court by writ of error.

Judgment of the Court affirmed with costs.

Severens & Burrows, for plaintiff in error.

Two questions will be principally discussed: first, whether by a deed of real estate, given under the circumstances in which this conveyance was made, would ipso facto operate to convey this over ripe crop of corn left standing through the winter on the stalk; and second, whether, if it would so pass, it was not competent for the parties to make a suppletory agreement at the time of giving the deed, whereby the corn, though the deed would operate to convey it, would be yielded by the vendee to the vendor as a part of the consideration for the conveyance. The Court below charged the jury in the affirmative of the first proposition, and the negative of the second, thus substantially disposing of the case.

I. The question whether a growing crop passes by a deed, in which there is no reservation, is not an open one. And it is not contended that a mere parol reservation could be proved to contradict the deed, presuming that this Court would hold, applying the ruling in Vandekarr v. Thompson, (19 Mich. 82,) and in conformity with the preponderance of authority, that the legal effect of the deed could not be gainsaid by parol.

But, be the rule upon that subject as it may, the reason of the rule, that a growing crop passes by the deed, wholly fails when applied to the case of a crop left standing over after maturity, for the purposes of convenience, or as a mode of preserving the crop, all vital connection with the soil being completely destroyed. The reason why a growing crop passes is that it would be inconsistent with the interest in the land conveyed by the deed, that the vendor should retain the right to keep this crop upon it until ripe, drawing therefrom the sustenance necessary to mature it.

We say that the Court below misapplied the rule to a state of facts, in which the reason of it failed, and produced a result so absurd and unjust, and so manifestly against what the whole conduct of the parties showed they intended, as to force the conviction that there must have been a miscarriage of the law. That a different rule applies to the case of a matured crop, from that which governs the case of a growing one, was held in Powell v. Rich, 41 Ill. 466-499.

II. Supposing, however, that the title to the crop would pass, the second question presents itself, which is whether it is not competent to the parties to agree, at the time of the conveyance, that as part of the consideration the vendee will give to the vendor the crop, it being borne in mind that the crop is an incident merely, capable of being granted without deed. The Supreme Court of Indiana held, in a very recent case, that it is competent in precisely such a case, Heavilon v. Heavilon, 29 Ind. 509.

That the principle relative to contradicting a deed by parol is not violated by showing a suppletory agreement, although it relates to the same subject, provided, (and this seems to be the condition), the deed or writing is allowed to have its full legal effect according to its terms, the authorities are full and decisive: Jeffrey v. Walton, 1 Stark. 279; Harris v. Rickett, 4 Hurls & Norm. 1; Malpus v. Lowdon & Co., Railway Law Rep. 1 Com. Pl., 336; Wake v. Harrop, 1 H. & C., 202; Wallis v. Littell, 11 Com. B. N. S. 369; Rohan v. Hanson, 11 Cush. 44; Hahn v. Doolittle, 18 Wis. 196; Taylor v. Galland, 3 Greene, Ia., 22; Frey v. Vanderhoof, 15 Wis. 397; Fisk v. McGregory, 34 N. H., 414; Miller v. Fichthorn, 31 Penn. St., 260; Lindsley v. Lovely, 26 Vt. 123; Parsons v. Camp, 11 Conn. 525; Collins v. Tillou, 26 Conn. 368.

The formal deed of conveyance being merely for the purpose of transferring the title, it would seem to fall within the principle of the cases relating to bills of sale and receipted bills of parcels: Pickard v. McCormick, 11 Mich. 68; Rowe v. Wright, 12 Mich. 289. It was so held in the cases above cited from 15 Wis. 397; 31 Penn. St., 260; 34 N.H. 414; and 26 Conn. 368.

And the decisions of this Court have been uniform in holding, that when the inquiry was one relating to the consideration of the contract or conveyance, a suppletory agreement might be shown, notwithstanding it might result in the ultimate consequence of establishing a countervailing right, that would to some extent neutralize the obligation of the writing or the effect of the conveyance: Bennett v. Beidler, 16 Mich. 150; Bowker v. Johnson, 17 Mich. 42, and cases cited.

III. A third ground of objection to the charge exists in the action of the Court below in closing the case against the plaintiff, by instructing the jury that a subsequent agreement by the vendee, that the vendor should have the corn, would be void for want of consideration. This was a mistake. If we were held wrong in both our preceding points, and we could establish no legal right in the plaintiff, either by showing that the corn did not pass by the deed, or that it was competent to show that the vendor took it as part of the consideration; yet there was enough to warrant the jury in finding that the defendant was under an equitable obligation to have the contract corrected, and that was a sufficient consideration.--Kennard v. George, 44 N.H. 440; Beardsley v. Knight, 10 Vt. 185; Canedy v. Marcy, 13 Gray 373; Stedwell v. Anderson, 21 Conn. 139; Evans v. Strode, 11 Ohio 480. It was in evidence that the defendant had admitted that the corn belonged to the plaintiff. That alone made the plaintiff's case as strong as it was in the case of Austin v. Sawyer, 9 Cow. 39, when the Court held that a sufficient basis of recovery.

Thomas C. Cutler and Thomas R. Sherwood for defendant in error.

I. The corn standing upon the hill, unharvested, and not having been severed from the soil, was a part of the realty. and passed by the deed. 4th Kent. Com., 467; 1 Sugden on Vendors, p. 45; 1 Washburne on Real Property, p. 4; 2 Id. 625; 3 Johns. 222; 10 Ind. 465; 12 Mo. 457; 17 Pick. 192; 2 Hill 142. This cites approvingly 3 N. H; 2 B. & C., 36; 3 N. H., 503. See p. 507; 19 Pick. 314.

II. The 2d alleged error has no relevancy to the case, and, whether erroneous or not, the judgment will not be reversed for such alleged error. 3 Mich. 55, 12 Id. 427, 13 Id. 70, 14 Id. 397, 17 Id. 425. But the charge was correct. 17 Pick. 192.

III. As to the 3d error assigned, see cases cited under first point. All oral negotiations or stipulations between the parties which precede or accompany the deed, are regarded as merged in it. 11 Mass. 27; 1 Tenn. 174; 15 Pick. 53; 14 Wen. 199; 12 Wen. 446; 4 Conn. 428; 1 Penn. 417; 1 Johns. Ch., 282, 425, 429; 7 Pick. 29; 17 Mass. 573-4; 4 Greenleaf 497; 1 Cowen 122; 2 Day 137; 1 Ala., Rep., 270; 12 Wen. Rep., 566; 11 Conn. 350-1-2-3; Cowen & Hill's notes, 1467-1470.

Graves, J. Campbell, Ch. J. and Cooley, J., Christiancy, J. concurred.

OPINION

Graves, J.

The plaintiff in error sued Hasceig for the alleged conversion of a quantity of standing corn, which Tripp claimed as his...