McIlvaine v. Harris

Scott, Judge, delivered the opinion of the court. 1. Growing wheat is a part of the freehold and passes along with the land on which it is sown. The rule with regard to emblements, as stated by an accurate writer, is this : that, in contracts for the.sale of things annexed to and growing upon the freehold, if the vendee is to have the right to the soil for a time, for the purpose of further growth and profit of that which is the subject of sale, it is an interest in land, within the meaning of the statute of frauds, and must be proved by writing; but when the thing is sold in prospect of separation from the soil immediately or within a convenient and reasonable time, without any stipulation for the beneficial use of the soil, but a mere license to enter and take it away, it is to be regarded substantially as a sale of goods, and so not within the statute; although an incidental benefit may be derived to the vendee from the circumstance that the thing may remain for a time upon the land. (Greenleaf’s Cruise, vol. 1, p. 60.) From the rule thus established, it is plain that growing wheat [459] is an interest in land, and would pass by the deed which conveyed the land. ■ Now no principle is better established than that which forbids the introduction of parol evidence to contradict or vary a deed. The evidence, if admitted, would have shown that an interest did not pass by the deed, which the law says did pass. But as growing wheat is an interest in land, a contract concerning it is within the statute of frauds and perjuries, and must be in writing. It would follow, therefore, that parol evidence of the sale of a growing crop of wheat would be inadmissible. The judgment is affirmed. The other judges concur.