22 N.H. 538 | Superior Court of New Hampshire | 1851
The parties to the record in this case are Conner and Coffin ; but an examination of the facts stated,-shows that Ham, the original owner of the premises from which the manure was taken, is probably the defendant in interest. Be that as it may, however, whether he is interested as the real defendant, or as the implied warrantor of the title to the manure, or even if not interested at all, we do not discover that it can make any difference with the result.
Ham sold the farm at auction on the 18th of April, 1850, and at the time of the sale made no reservation of the manure. After the farm was sold, he directed the auctioneer to set up the manure, but the plaintiff objected, claiming it as a part of his purchase, and forbade the sale. No sale of the manure took place on that day ; and on the next day, April 19th, Ham, with a full knowledge of the plaintiff’s claim, gave him a deed of the farm, without any reservation contained therein. On the morning before the sale took place, however, Conner called upon Ham, and examined the premises, and was told by him that he should sell the farm in lots, and should put up the manure separately._
Upon these facts two questions arise; first, whether the manure passed by the conveyance, assuming that there was no reservation in the sale; and, second, whether the evidence was competent to show a reservation.
In Kittredge v. Woods, 3 N. H. Rep. 503, it was decided, that, when land is sold and conveyed, manure lying about a barn upon the land will pass to the grantee, as an incident to the land, unless there be a reservation of it in the deed. This decision was made upon an examination of the authorities bearing upon analogous cases, and the law then announced has since that time been the received doctrine in this State. But the facts presented in this case go farther, perhaps, than those which ordinarily arise, and further than those in Kittredge v. Woods. The manure in question here was under cover, in a place made for the purpose, behind the cattle-stall, in the barn. It was not, therefore, incorporated with the soil, and there was no difficulty in separating it from the land. But it was made upon the farm, from the products of the land, and it was necessary and import
As between landlord and tenant, for the encouragement of trade and manufactures, the tenant is favored ; and the original rule of the common law, which subjected every thing affixed to the freehold to the law governing the freehold, has been materially changed; and things which the tenant has affixed to the freehold for the purposes of trade or manufacture may be removed, when the removal is not contrary to any prevailing usage, or does not cause any material injury to the estate. Cresson v. Stout, 17 Johns. Rep. 116 ; Holmes v. Tremper, 20 Johns. Rep. 29; Grimes v. Boweren, 4 Moore & Payne, 143 ; Poole’s Case, 1 Salk. Rep. 368; 6 Bingham, 437; 2 Kent’s Com. 343. But it is necessary that the articles be removed before the expiration of the lease ; if not, the legal presumption is that they are given up by the tenant to the landlord. Stockwell v. Marks, 5 Shepl. Rep. 455; Goffield v. Hapgood, 17 Pick. Rep. 192 ; White v. Arndt, 1 Whart. Rep. 91; Union Bank v. Emerson, 15 Mass. Rep. 159 ; Lee v. Risdon, 2 Taunt. Rep. 188 ; Lyde v. Russell, 1 Barn. & Ad. 394 ; Beckwith v. Boyce, 9 Mis. Rep. 560.
This rule applies chiefly to articles used in trade and manufactures, although it has in some instances been extended to those used for agricultural purposes. Whiting v. Braston, 4 Pick. Rep. 310 ; Van Ness v. Pacard, 2 Peters, U. S. Rep. 137; Holmes v. Tremper, 20 Johns. Rep. 29.
But however far Courts may have gone in derogation of the common law, in favoring the tenant, under the belief that the business community is thereby to be benefited, yet we find no case where the tenant of a farm has been permitted to remove the manure which has accumulated in the course of his term. On the contrary, there are several adjudged cases directly at issue with the position. In Daniels v. Pond, 21 Pick. Rep. 367, 371, a part of the manure in controversy had accumulated at one end of the barn, having been thrown from the stall where the cattle had been fed, and the Court say: te Manure made on
As between grantor and grantee, the law is more favorable for the grantee than it is for a tenant. Retween them the strict rule of the common law still prevails, and the grantee holds all fixtures, whether for trade and manufactures, or for the purposes of agriculture or habitation. Day v. Perkins, 2 Sandford’s Ch. Rep. 364; Kirwan v. Latour, 1 Harr. & Johns. 289; Miller v. Plumb, 6 Cowen’s Rep. 665. In Stone v. Proctor, 2 Chip. Rep. 113, Proctor sold the farm to Stone, March 22d, 1822, but was to retain possession till the 1st of April following. On the 28th and 29th of March, he drew from the premises the manure as it originally lay in the barn-yard and in heaps at the stable windows. The plaintiff proved his deed, which was in the usual form, and showed the removal of the manure by the defendant ; and it was held that he was entitled to judgment. The Court say: “ The analogy of manure to other decomposed vegetables, which are unquestionably of the freehold and pass with it by deed, and the policy of the rule, as applicable to rural economy, induce the Court to decide that the manure of animals being in the yard, and at the stable windows in the stall in which it usually accumulates, is part and parcel of the freehold, and that as such it passes with the freehold by deed.”
In the several cases cited, the principles which we have attempted to bring out and which govern the law of landlord and tenant, and grantor and grantee, upon the question discussed,
The argument of the counsel for the defendant proceeds upon the ground that manure is personal property, and that a reservation may, therefore, be made by parol. In one view of the matter, it is, perhaps, personal property, if not incorporated with the soil. It was so held in Pinkham v. Gear, et al. 3 N. H. Rep. 484. So are crops, ripe and ready for harvest, so far personal property that they may be seized on execution and harvested by the officer. And yet there can be no question that growing and even ripe crops pass with the land, if there is no reservation. The various buildings upon the land, the fences, the crops, the fruit, and all fixtures, pass by the conveyance, unless there is a reservation. They are all incident to the realty and pass with it; and manure comes within the same general principle, and is to be governed by the same rule.
It is quite clear that, as a general rule, parol evidence cannot be admitted to vary or control the terms of a written contract.
Judgment on the verdict.