SECTION IX. CONTRACTS FOR THE SALE OF LANDS. matter of the subject which par takes of A CONTRACT for the sale of lands, &c., within the meaning of Contracts, the fourth section, must relate to the sale of the fee simple, or of some less interest than the fee, and give to the purchaser an exclusive right to the land for a limited period". The statute, however, is not confined merely to contracts relative to houses and lands, in the common acceptation of those terms; it extends to agreements, the subject matter of which partakes of the realty. An agreement to take lodgings is within the meaning of the statute, and cannot be enforced unless reduced to writing b. So is the sale of growing underwood to be cut by the purchaser. So is an agreement for prima vestura, or growing grass, to be mown and made into hay by the vendee, whereby the exclusive right to the land is obtained for a limited time d A sale of growing turnips, no time being stipulated for their removal, and the degree of their maturity not being positively found, has been held to be a contract for an interest in land within the meaning of this section ". But in a subsequent case, where all the previous decisions. were reviewed, it was held, that the sale of a growing crop of potatoes was not a contract, or sale of lands, &c., within the fourth section, but a sale of goods, merchandizes, &c., within the 17th section; for it did not give to the vendee a right to the possession of the land. Bayley, J., said, "that the contract was not for the sale of any interest in or concerning land, but a contract for the sale of things, which at the time of the delivery were to be goods and chattels; crops raised by labour, such as corn and potatoes, were emblements which went to the executor and not to the heirs, they might be seized under a Per Littledale, J., in Evans v. Roberts, 5 B. & C. 839. And in Smith v. Surman, 9 B. & C. 573. Edge v. Stafford, 1 C. & J. 391. Inman v. Stamp, 1 Stark. 12. Scorell r. Boxall, 1 Y. & J. 396. 4 Crosby r. Wadsworth, 6 East, 602. Shelton v. Livins, 2 C. & J. 411. 2 Tyr. 420. • Emmerson v. Heelis, 2 Taunt. 38. the realty, must be in writing. Contracts of the fi. fa.; therefore, in contemplation of law, they must be considered chattels. They were distinguishable from the natural and permanent productions of the soil, such as growing grass, apples upon trees, &c., which belonged to the freehold, and went to the heir. It was immaterial that the vendee acquired a right by his contract to have the crop continue in the land of the seller until it arrived at maturity; for a party entitled to emblements had the same right, and yet he was not by that right considered to have an interest in the land." Holroyd, J., said “that the vendee acquired no interest, so as to entitle him to the possession of the land for a period, however limited; he had only an easement, a right to come upon the land, for the purpose of taking up and carrying away the potatoes; but that gave him no interest in the soil." Littledale, J., was of opinion "that a sale of the produce of the land, whether it was in a state of maturity or not, provided it was in actual existence at the time of the contract, was not a sale of lands, &c., within the meaning of the fourth section, which seemed to him to mean land taken as mere land, and not its annual growing productions." a And in a subsequent case, where the plaintiff, being the owner of trees growing upon his land, sold to the defendant the timber at so much per foot; the court held, that it was not within the meaning of the fourth section; for it was not a contract for the growing trees, but for the timber at so much per foot; i. e. for the produce of the trees when they should be severed from the freehold; the vendee could take no property in them until they were cut. It was a contract for the sale of goods within the seventeenth section ". But if there be one entire contract made at the same time, partly an interest in land, and partly for crops or other chattels, the latter part falls within the meaning of the fourth section as well as the former. As where the plaintiff let a farm to the defendant for 14 years, and the latter agreed to take the crops growing thereon, at a valuation, in assumpsit for the a Evans v. Roberts, 5 B. & C. 829. b Smith v. Surman, 9 B. & C. 561. See Watts v. Friend, 10 B. & C. 446, post. 1053. value of the crops, and for work and labour, and materials done and used in preparing the land for tillage; the court held, that the agreement was within the fourth section, for the contract was entire, both for the crop and the land. When the contract was made, the crops were growing on the land; by the agreement the defendant was to have the land as well as the crops, and the work, labour, and materials, were so incorporated with the land, as to be inseparable from it. The defendant could derive no benefit from the work and labour unless he had the land. The court were of opinion, that both a right to the crops, and the benefit of the work, labour, and materials, were an interest in the land; but if either of the two was properly an interest in the land, it would be a sufficient objection to the action, the contract not being in writing a. Where the land is sold, and the vendee takes from the vendor the growing crops, the latter are considered part of the land. It is otherwise, however, when the contract respecting the crops or chattels is distinct from that relating to the land. As where the plaintiff quitted his farm in March, and was succeeded by the defendant; there being forty acres of wheat sowed by the plaintiff, he asked the defendant if he would take the wheat at 2007., telling him that if he did not, he should not have the farm; the defendant said he would take it. The defendant also took the dead stock at a valuation, and promised to pay for the wheat and the dead stock on a given day; held, that the contract relating to the wheat and the dead stock was not within the fourth section c. The result of the authorities on this subject appears to be Result of that contracts for the sale of crops cultivated by labour and the authorities. expense, such as corn, potatoes, clover, &c., which do not confer on the vendee any other right to the land than what is necessary for his enjoyment of the crops, do not fall within the meaning of the 4th, but of the 17th section; whereas contracts relating to the natural productions of the soil, such as growing grass, trees, &c., fall within the 4th section, unless they are to be cut down immediately, in which case they are to be deemed chattels, and therefore within the 17th section". If a party under a void parol contract fell and remove timber, or take away a growing crop, he is liable as for goods sold, although had he not carried the new parol agreement into execution, he could not have been sued thereond. If a party repair premises under a void parol agreement so to do, in consideration of the assignment of a house which the other party refuses to assign, an action for work and materials may be sustained to recover the value of the repairs performed e. Plaintiff having really bargained with J. E. for the sale of some houses, sold the bargain to defendant for 401.; and J. E. at the request of defendant, conveyed the premises to P., who was not a trustee for defendant; a verdict having been found for the plaintiff in an action for the recovery of this 40%., the court refused to enter a nonsuit, which was moved for on the Smith v. Surman, ante, 1040. A contract for the sale of an interest in land, without a note in writing, may operate as a license so as to excuse the entry of the purchaser on the land, but it cannot be made available in any way as a contract. Therefore where a party had purchased by a verbal contract, a growing crop of grass, with liberty to go on the close wherein it grew for the purpose of cutting and carrying it away; it was held, that he could not maintain trespass against the seller for taking away his horse and cart from the close, which he had brought there for the purpose of carrying away the grass; for that it was in substance an action charging the defendant on the contract, within the 4th section; which, as it was void, by reason of its not being in writing, could not be available to give a right capable of being enforced by action. Carrington . Roots, 2 Mees. & Wels. 248. 1 Mur. & H. 14. Teall r. Auty, 2 B. & B. 99. 4 Moore, 542. Bragg v. Cole, 6 Moore, 114. Poulter v. Killingbeck, 1 B. & P. 398. e Gray r. Hill, R. & M. 420. And see Adams v. Fairbank, 2 Stark. 277. grounds, first, that the oral bargain for the interest in the houses could never have been enforced, and therefore could not form the consideration of an assumpsit; secondly, that the house had never been conveyed to the defendant a. If the agreement does not strictly relate to land, it will not come within the act. A tenant having agreed with his landlady that if she would accept another for her tenant in his place, (he being restrained from assigning the lease without her consent,) he would pay her 401. out of 100l. which he was to receive for the goodwill, if her consent were obtained; and having received the 1007. from the new tenant, who was cognisant of that agreement, he is liable to the landlady in an action for money had and received to her use, the consideration being executed, and therefore the case being taken out of the statute of frauds, as a contract for an interest in land b. The statute does not invalidate an executed parol contract, so as to prevent a party to it from maintaining an action for a breach of it, where the breach does not relate to an interest in land, although the contract itself stipulates that the defendant shall be substituted as tenant in the stead of the plaintiffs, of premises in their occupation. If A. agree with B. to let him land rent-free, on condition that A. shall have a moiety of the two succeeding crops, the agreement need not be in writing under the statute a. A. grants a lease of premises to B., who afterwards takes C. into partnership; B. and C. apply jointly to A. to enlarge the premises, agreeing to pay 101. per cent. per annum on the money laid out, which is accordingly done, and B. and C. dissolve partnership; held, that the agreement is only collateral to the lease, and not a new demise, and therefore that it is not within the statute of frauds, and that A. is entitled to recover on it in an action against B. and C.e A license to enjoy a beneficial privilege, or grant of an ease * Seaman v. Price, 2 Bing. 437. But see Bartlett v. Pickersgill, 4 East, 557. n. Griffith v. Young, 12 East, 513. d Poulter v. Killingbeck, 1 B. & P. 397. And see Bristow v. Waddington, 2 B. & P. 452. Hoby v. Roebuck, 2 Marsh. 433. 7 Taunt. 157. |