Adams v. Watkins

McGrath, C. J. On March 1, 1887, plaintiffs conveyed to defendant certain farming lands for an expressed consideration of $3,600, and defendant went into possession. At the time of the conveyance, certain wheat was growing upon the' land. Plaintiffs insist that it was agreed by parol that, as a further consideration for the conveyance, ■defendant sho'uld harvest and market the wheat, and, after [432] deducting the cost of threshing, pay to plaintiffs one-third of the proceeds; and this suit is brought to recover such one-third of the proceeds. The court instructed the jury that, although a parol reservation of growing crops, upon a sale and conveyance of lands, was within the statute of frauds, yet, if a contract was made as claimed by plaintiffs, they should find for plaintiffs. This instruction was erroneous. It is true that a naked contract resting in parol for the severance and delivery of a growing crop is not within the statute, but here the conveyance carried with it the wheat, and vested in the grantee an absolute title thereto. Plaintiffs set up as a part of the same contract a parol agreement respecting the wheat, which is inconsistent with the grant. It is not a question of the statute of frauds, but an attempt to vary the terms and effect of a written instrument by parol. In other words, the written instrument transferred to the grantee the absolute title to the wheat, and it is sought to show by parol that the right to one-third of the wheat failed upon its severance from the soil. The deed imports a sale to the grantee; the parol agreement, that the sale was not absolute; that a trust was created respecting the wheat, or that there was a retransfer, or that there was an agreement by the terms of which an interest in the wheat should be retained, of that the crop transferred, when severed, should be divided. However the transaction may be viewed, the parol agreement sought to be shown modifies and varies the terms and effect of the conveyance. Vanderkarr v. Thompson, 19 Mich. 82. The judgment is reversed. Grant and Hooker, JJ., concurred with McGrath, 0. J.