Proctor v. Gilson

49 N.H. 62 | N.H. | 1869

Bellows, C. J.

The manure was not made in the usual course of husbandry, but in a stable unconnected with any farm; and was, therefore, not a part of the real estate, and did not pass by the deed. It is substantially like the case of manure made in a livery stable, and, then, as it is well settled in New Hampshire, it is not part of the land. Needham v. Allison, 24 N. H. 355 ; Sawyer v. Twiss, 23 N. H. 349 ; Plumer v. Plumer, 30 N. H. 558 ; Perry v. Carr, 44 N. H. 118.

The reasons given for holding that manure made in the ordinary course of husbandry goes with the farm, exclude the idea that when made out of the ordinary course of husbandry, it is a part of the realty. The doctrine that manure made out of the ordinary course of husbandry is not part of the realty, is fully sustained in Hill v. DeRochemont, Rockingham County, June, 1868 ; and Cony v. Bishop, Grafton County, July, 1868.

The remaining question is, whether evidence of a parol agreement at the time of the sale, that the manure should go with the lot, was admissible.

It is too clear to admit of any doubt that parol evidence could not be received to vary the terms of the deed. The situation of the subject-matter of the conveyance, may, indeed, be shown by parol, to aid in the construction of the instrument; but evidence that it was verbally agreed that certain things should, or should not, be included in the conveyance, would not be admissible.

In Connor v. Coffin, 2 N. H. 538, where there was a conveyance of a farm with manure upon it, made in the ordinary course of husbandly, it was decided that evidence of a parol reservation of the manure, either at the making of the bargain or afterwards, was inadmissible to affect the conveyance ; and so held in respect to a parol reservation of a fixture; Noble v. Bosworth, 19 Pick 314; and the same principle must be applied to the proof that certain things were, by the agreement, to be included.

As a general rule, all the negotiations must be regarded as merged and embodied in the written instrument as the final and authoritative expression of the agreement of the parties; Noble v. Boxworth, before cited; Greenl. Ev. § 275 & 281; in Howe v. Walker, 4 Gray, 318, where defendant made a deed to plaintiff with a covenant to warrant and defend against all lawful claims and demands under him; it was held that plaintiff could not prove that defendant by ■ parol at the same time, and for the same consideration, agreed to pay off a mortgage of the same land created by another person.

If, during the negotiations for the sale of the land, a separate agreement by parol had been made for the sale of the manure as personal property, not intended to be reduced to writing, or included in the written instrument; it would have been valid, unless in consequence of the value, a memorandum in writing was necessary by the statute of frauds, as would seem to be the case here. We do not understand, however, that .the offer was to prove such a separate contract of sale, but that the manure should be sold with the lot, and for the same consideration.

Under those circumstances, we think, the deed must be regarded as embodying all the stipulations between the parties upon the subject, and, therefore, the exceptions are sustained; and, according to the provisions of the case, there is to be judgment for plaintiff for the value of the manure to be determined by the clerk.