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Statute of Frauds, fourth edition, sections 235-258, this subject
is very thoroughly discussed, and the general rule deduced that
whero the intention is to convey a mero chattel, though it may
in the interim be a part of the r^ty, it is not affected by the stat-
ute of frauds; but if it is to confer an exclusive right to the land
for a time, for the purpose of making a profit of the growing sur-
face, it is within the statute and must be in writing, even though
the purchaser's real profit may come from the sale of the produce
of the land as a chattel. On the other hand, Professor Wash-
burn gives, as an attempt to harmonize decisions, the result that a
sale of ^^ growing trees or other fructus naturales, when they
aro not to be severed at once, but aro to remain in the soil some
definite or indefinite time, is generally regarded as a grant of ai»
interest in the land: 3 Washburn on Real Property, 5th ed., 368.
Mr. Benjamin states the rule in this way: that whero a sale w

Digitized by


July, 1894.] FiBH t. Capwul. 809

made which Tests the property at onee in the buyer belovs i
ance, a distinction is made between fmctus natnrales and fmctns
indnstriales, the former being an interest in the land, which is
within the statute, of frauds: 1 Benjamin on Sales, Kerr^s ed.,
sec. 136.

We think the better reason is with the Tiew which holds the
snle to carry a chattel interest and not an interest in the land.
Eyidently, the parties to a sale of standing trees, as in this case,
have in mind the trees as timber, and not the land. They
are not bargaining for occupation, and would not often think to
clinch the trade by a deed. They have contracted for wood,
which happens not to hare been cut; but why should a mere con-
tract of that sort be different in legal effect from a contract for
wood which has been cut? If, by its peculiar terms, it neces-
sarily inyolyes an occupation of land, there is reason for it, but
not otherwise. If a man sells cut wood, he may refuse to deliyer
it and become liable for a breach of contract We see no reason
why the same rule should not apply where the thing sold is stand-
ing wood simply. What the buyer pays for and expects to get is,
not an interest in land, but trees seyered from the land. The
whole thing rests in contract. This yiew is supported by respect-
able authority. It is very clearly stated by Bigelow, C. J., in
Drake v. Wells, 11 Allen, 141, where it is held that a sale, such as
the one before us, does not pass an interest in land, but only in the
trees when they are severed from the land; that it is an executory
contract for the sale of chattels when they shall be cut, with a li-
cense to enter on the land for the purpose of removal. Before
they are cut the license may be revoked, otherwise it would
amount to an interest in the land. In some of the cases the con-
tract has been oral and in others written, but we do not see that
this is important, for, if the sale be an executory contract, either
form is sufficient. To *''* the same effect are Silsby v. Trotter,
29 N. J. Eq. 228; Herrick v. Newell, 49 Minn.. 198; Poor v. Oak-
man, 104 Mass. 309; Cain v. McGuire, 13 B. Mon. 340; Byassee
v. Reese, 4 Met. (Ky.) 372; 83 Am. Dec. 481; McClintock's
Appeal, 71 Pa. St. 365; Sterling v. Baldwin, 42 Vt 306. In
Owens V. Lewis, 46 Ind. 488, 16 Am. Rep. 295, there is as thor-
ough an examination of this subject as can be found anywhere,
with the conclusion that a contract for the sale of growing trees
is a contract for the sale of an interest in land: See, also, Wil-
liams v. Flood, 63 Mich. 487. While we must concede that this
viow is taken by the ^eater number of authorities, yet we are con-
ctrained to think that the other view, that such a sale is an exec-

Digitized by


810 Fish v. Capwbll. [R. L

ntoiy contract for trees to be severed from the land, and bo not
within the statute of frauds, is much more sensible. From the
nature of the transaction, it is plain that what the buyer is after
is wood, not land; if so, we do not see why we should say that,
by legal construction, he buys an interest in land and not wood.
The buyer has just the same rights and remedies under the con-
tract, as we construe it, that he would have for a sale of any chat-
tel; whereas, under a contract by parol, or in writing not con-
formable to the statute, if it be held to be an interest in land, he
would have none at all.

In this case there was a written instrument, which was sub-
stantially a deed of the trees; but, if we give effect to it as a deed
of an interest in land, we must say that it is more than a deed of
trees, and that it practically amounts to a lease of the land for two
years; because, under it, the purchasers might fell the trees at
once and obstruct the use of the land for any other purpose for
nearly all that time. !Now, the parties have made no such express
agreement. It is more reasonable to imply that the owner meant
to retain the possession and use of the land, subject to the license
to remove the trees, than that he virtually surrendered it imder
such a license. If the deed carries an interest in land, suppose
the purchaser refuses to take the trees — what then? The owner
of the land cannot get back the interest he has conveyed, so as to
be able to deal with another, unless he also can get a deed from
the purchaser. Yet who would think of a purchaser ^'^ of trees
making a deed back in order to clear the title? The fact is, the
parties have simply made a contract, and it ought to be treated
as such; and putting it into the form of a deed does not make
anything more than a simple contract. One party has agreed to
turn a part of his realty into personalty and sell it to the other.
If he had agreed to turn cattle into beef he would not be held to
convey a present interest in the cattle, and there is no greater
reason to hold that in the former case he convieys a present inter-
est in the land. Courts have frequently tried to avoid the full
effect of their construction of these contracts by making a distinc-
tion between the natural growth of the land, fructus naturales,
and crops produced by tillage, fructus industriales; calling the
former a contract for realty and the latter for chattels. But we
see no logical ground for this distinction. They are both a part
of the realty until they are severed. The fact that the policy of
the law allows the latter to go to the executor or administrator
as a reward for the labor of the husbandman does not change its
character in the mean time. The better reason, as it seems to ub.

Digitized by


July, 1894.] Manton v. Bay. 811

is to put both classes on the same footing and treat them as con-
tracts for the things to be severed.

Construing this contract, then, as amounting only to an execu-
tory contract or parol license, it follows that it was revocable:
Foster v. Browning, 4 R. I. 47; 67 Am. Dec. 505; Owens t. Lewis,
46 Ind. 488; and the conveyance to the plaintiff operated as a
revocation, because, as to him, the license was void: Thurber y.
Dwyer, 10 B. I. 355.

The refusal to charge as requested must therefore be held to Im
erroneous and a new trial granted.

There is a decided conflict of aathority upon the question as to whether
« contract for the sale of growing or standing trees is one for the sale of
an interest in land, and, therefore, within the statute of frauds. The
cases each way are collected in Hirtb v, Graham, 60 Ohio St. 67, 40
Am. St. Rep. o41, and slightly preponderates in favor of the rule that
such a contract is one concerning an interest in lands, and within the
fourth section of the statute of frauds: See, also, the cases collected in
the monographic note to Kingsley v. Holbrook, 86 Am. Bee. 182, on
whether a sale of growing trees is a sale of an interest in land, within
the statute of frauds. A parol sale of standing trees, although void as
a sale of an interest in land, operates as a license to enter and cut and
carry away the trees, until revocation, but is revoked by a sale and con-
yeyance of the land to a third person : Jenkins v. Lykes, 19 Fla. 148 ; 46
Am. Rep. 19. A sale of growing trees is sometimes held to be a sale of
chattels only: See note to Kingsley v. Holbrook, 86 Am* Deo. 182;
Byassee ▼• Reese, 4 Met. 372; 83 Am. Dec 481.

Manton v. Eat,

[IS Rhode Island, 672.]

f?qulty will not. as a p^eneral rule, order the specific performance of a
contract for a sale of personal property.

<'ree the specific performance of a contract to convey personal prop-
erty. If like property cannot be obtained elsewhere, or If loss cannot
be ndequatoly compensated by dama^jes in nn action at law.

Equity will decree the specific performance of a contract to convey
corpr>rate stock If It cannot be obtained elsewhere than from the re-
«poiuleiit and Its value is uncertain and not easily to be ascertained.

DEMIRRABLE BILL.— A court of equity will not order one to
transfer stock which he does not have. A bill to compel the specific
perforninnce of a contract to convey stock must, tlierefore, allege that
the respondent had the stock at the' time of the contract

Clarke H. Johnson, for the plaintiff.

Oharles A. Wilson and Thomaa A. Jenckea, for the respond-


Digitized by


812 Manton v. Rat. [R.L

^v* STINESS, J. This is a bill for the specific perf onnaiiot
of a contnct to convey twenty-fiye Bhares of the capital stock of
the Home Investment Company, a corporation, in exchange for
stock owned by complainant in another corporation. The bOl seU
out that the complainant, prior to June 26, 1893, delivered cer-
tificates of the shares he was to convey^ duly issued by the corpo-
ration and transferred in blank, to one Goff, a broker, with in-
structions to deliver the same to Bay in exchange for the shares
he was to receive pursuant to the contract; that on June S6th
the respondent met the complainant at QofPs office and promked
to exchange the shares the next day; that thereupon he made
agreements for the disposal of said stock; that he cannot obtain
the stock of said Home Investment Company elsewhere than
from said Bay; that the value of said stock is uncertain and not
easily ascertainable, and that the respondent has refused to cany
out his contract To these allegations the respondent demurs

The general rule is, that a court of equity will not order the
specific performance of a contract for a sale of personal property,
because, ordinarily, there is an adequate remedy at law: Chafee
V. Sprague, 16 B. I. 189. Moreover, as to most kinds of personal
property and many stocks, a similar purchase can be made in the
market, so that a bill for specific performance is needless. But
this rule is neither inflexible nor without exceptions. Cases
which involve trusts are recognized exceptiona: Chafee ▼.
Sprague, 16 B. 1. 189; Goodwin etc. Go's Appeal, 117 Pa. St 514;
2 Am. St. Bep. 696; Johnson v. Brooks, 93 N. Y. 337. So also in
England, Lord Chelmsford •''* said, in Cheale v. Kenward, 3
De Qex & J. 27, that it was settled that a bill for specific pe:
f ormance would lie for railway shares which are not always to be
had in the market. Another exception is that a bill will lie
where the loss cannot be adequately compensated by damasre? in
an action at law: Bumgardner v. I^eavitt, 35 W. Va. 194; Johnson
V. Brooks, 93 N. Y. 337; Treasurer v. Commercial etc. Min. Co.,
23 Cal. 390; Eckstein v. Downing, 64 N. H. 248; 10 Am. St Rep.
404; White v. Schuyler, 1 Abb. Pr., N. S., 300; 31 How. Pr. 38;
Todd V. Taft, 7 Allen, 371; Siorfs Equity Jurisprudence, Wth
ed., sec 717; 1 Cook on Stocks and Stockholders, 3d ed., sees.
337, 338. Indeed, the rule of law, as claimed by the respondent,
is not substantially different from that embodied in the abore
exceptions, but he claims that the bill does not show a case which
falls within these recognized exceptions, for the following reasoiu:
1. The bill does not allege that the stock was not on the markel

Digitized by


July, 1894.] HAHTQir t. Rat. 818

for nle.at the tiine of maldng the contract or since; f. It doei
not iTer that the complainant has made any effort to obtain
other stocks of the Home Inyestment Company. This is so, and
yet we think the complainant presents a tiayersable ayerment
which coyeis these points by saying that he cannot obtain the
stock elsewhere than of the respondent; 3. The bill shows no
necessity for the complainant to resort to this court rather than
to a court of law. The allegation that the yalne of the stock is
uncertain and not easily ascertainable brings the case within the
class of exceptional cases where there is not an adequate remedy
at law. The tme standing of a ocMrporation is seldom known out-
side of its own officers. A stranger would, in most cases, find it
difScnlt, if not impossible, to proye the real yalue of its stock,
nnless it is one that is rated and for sale in the market He has
no access to its books; he cannot know its sssets and liabilities;
and, although he is willing to take the stock for a price, he might
be quite unable to proye that it was worth that or any other price.
No one can say that the remedy of damages in such a case is an
adequate f emedy. But there is a stronger reason for sustaining
the bill. If it be assumed that the stock cannot •^ be ob-
tained elsewhere than of the respondent, and that he has made a
valid contract for this particular stock, it is also to be assumed
that he wants this stock in specie. To deny this remedy would
be to deny him the substantial benefit of his contract. This
fact marks the exception to the general rule, which is based upon
the fact that like property may be obtained elsewhere, and so
the remedy is not needed: Story's Equity Jurisprudence, llBth
ed., sec. 716.

The fourth ground urged in support of the demurrer is that
it does not ayer that the respondent had the stock at the time of
the contract. We think the bill is faulty in this respect Of
coarse, a court cannot order one to transfer stock which he does
not haye. If one has agreed to do this, the only remedy is upon the
contract, for a court of equity would be powerless to do more. The
ayerment is that the respondent, '^eing, or pretending to be,
possessed of or otherwise entitled to certain shares of stocL" We
do not think this amounts to an ayerment of ownership, and to
this extent, theref ore, the demurrer to the bill is sustained.

ance of a eontiaci respecting personal property will not be enforced in
equity, unleaa an adequate remedy at law cannot be had : Eckstein t«
Downing, 04 N. H. 248 ; 10 Am . St. Rep. 404. In the absence of an ade-
quate remedy at laWf speoifio performance of a contract for the sale of

Digitized by


814 In bb Caswell's Request. [R. L

personal property will be decreed, ae where Btocks are sold which are lim«^
fted in amount, held in a few hands, and not ordinarily to be obtained^,
or where articles of a personal nature are peculiar or individual in their
character, or have an e8i)ecial value on account of the associations con*
nected with them, as pictures, curiosities, and the like: Adams v»
Messinger, 147 Mass. 185; 9 Am. St. Rep. 679. While an agreement to-
transfer certain shares of stock is one which equity may order to be
specifically performed (note to Rothhols v. Schwartz, 19 Am. St. Rep.
422). specific performance will not be decreed of contracts for the sale
of stocKs in private corporations, where the breach of the contract ia
capable of exact compensation in damages: Eckstein f. Downing, 64"
N. fi. 248; 10 Am. St. Rep. 404.

In bb Caswell's Bequest.

(18 Rhohb Islakd, SSft.]

to the people for all proper purposes, under reasonable restrictions as
to the time and mode of examining the same, but no one has a right
to examine, or obtain copies of, public records from mere curiosity,.
or for the purpose of creating public scandaL *

In the absence of a statute allowing any person to examine public
records and take memoranda thereof, the court has power to prevent
the use of its records to gratify private spite or to promote public

COURTS-COPIES OF RECORD.-It Is not the duty of a clerk of
the court to furnish a copy of the proceedings in a divorce case to the
reporter of a newspaper, who requests it ^tor pablication or other*

»» TILLINQHAST, J. At the November session of this
court in Washington county^ the petition for divorce of Eva IL
Lee V. Thomas Z. Lee was heard and granted. Shortly there-
after, as represented by William H, Caswell, clerk of the court
in that county, a reporter for a Woonsocket newspaper requested
him to furnish a copy of all the proceedings in said case "for pub-
lication or otherwise," and he now asks the advice of the court a»
to his duty in the premises.

At common law, every person is entitled to the inspection,.
either personally or by his agent, of public records (this term in-
cluding legislative, executive, and judicial records, etc.), pro-
vided he has an interest therein which is such as wonld enable
him to maintain or defend an action for which the document or
record sought can furnish evidence or necessary information. It
is not eesential,'however, "that the interest be private, capable of
sustaining a suit or defense on his own personal behalf; but
it will be sufficient that he act in such suit as the repre-

Digitized by


July, 1894.] In be Caswell's Request. 815

aentatiye of the common or public right'': 20 Am. & Eng. Ency.
of Law, 522, 523, and cases cited. By statutes of the United
States (see act of August 12, 1848; 9 U. S. Stats., c. 166, p. 292),
and also of several of the states, the necessity of interest has been
done away with, and any person may examine public records and
take memoranda therefrom: In re Chambers, 44 Fed. Bep. 786;
**• State ▼. Eachac, 37 Minn. 372; Hanson ▼. Eichstaedt, 69
Wis. 538; Lum v. McCarty, 39 N. J. L. 287; Newton ▼. Fisher, 98
N. C. 20. As there is no statute in this state, however, regulat-
ing this matter, the conmion-law rule above stated, in so far as it
is applicable here, is doubtless in force. Whether or not we
should be willing to go to the full extent thereof, we are not now
called upon to decide. But it is clearly within the rule to hold
that no one has a right to examine or obtain copies of public
records from mere curiosity, or for the purpose of creating public
scandal. To publish broadcast the painful and sometimes dis-
gusting details of a divorce case not only fails to serve any useful
purpose in the community, but, on the other hand, directly tends
to the demoralization and corruption thereof, by catering to a
morbid craving for that which is sensational and impure. The
judicial records of the state should always be accessible to the peo-
ple for all proper purposes, under reasonable restrictions as to
the time and mode of examining the same, but they should not be
used to gratify private spite or promote public scandal. And,
in the absence of any statute regulating this matter, there can be
no doubt as to the power of the court to prevent such improper
use of its records. We advise the clerk that he should not fur-
nish a copy of the case referred to for the purpose named.

All the judges concur in this opinion.

JUDICIAL RECORDS.— Under a etatute providlns, with fetpect to
eonntv officers, that ''all books and papers required to be in their offloea
shall be open for the examination of any person/' one who has a present
and existing interest in information to be obtained from the puUic reo*
ords in any coanty office has a right to make an examination of such
recor Is to the extent of his interest, and to make copies, abstracts, ex-
tracts, or memoranda therefrom : Boylan ▼• Warren, 89 Kan. 801 : 7
Am. St. Rep. 651. Coanty records, howoTer, which are open for pnblie
inspection, and of which any person may take copies, are, it is said, the
records and files of the oounW, and not of the oonrts of theoommon-
wealth within the county, and that sach papers are not always open to

?»ublic inspection: See note to Schmeddmg t. May, 24 Am. St. Rep.
9. The extent to which public records may be examined, copied, and
used for private purposes is an embarrassing question, particularly as
to how far a copy or abstract of the entire records of a public office may
be taken by one who has no special interest therein, and who desires
the same for npeculative purposes: See monographic note to Randolph
V. State, 60 Am. Rep. 764-768, on the right to examine and oopy publie

Digitized by


816 Ih bs Caswjux'b Requsbt. [R. L

recorda: Ferry t. Williame, 41 N. J, L. 882; 82 Am. Rep. 219, and note;
Brown v. County Treasurer, 64 Mich* 182; 62 Am. Rep. 800. At com*
mon law the right to inspect records was confined to the parties thereto,
and tboee having an interest therein, and while more latitude is not
given, there is no doubt that the right is controlled to some extent by
the objects for which the examination is made, or the use to be made of
the information derived: See nolo to Randolph t. State. 00 Am* Am,
704, 707.

Digitized by





AiKBN V. McDonald.

C48 SOVTH Caxouna, 29.]

«f a coTenant of warranty, after eyictlon. Is that fixed by the statute 1b
force wben the covenant Is made, and not by the statute In force whea
tbe eviction takes place.

PARTIAL BREACH of a covenant of warranty by reason of a failure
of title to a portion of the estate conveyed, there must be an appor^
tionment of the damages fixed by the statute, based upon the relative
value of that portion to which the title fails, and of that portion to
which the title proves good.

AQES.— If a grantor is seised of an estate for a life only, and not of
tbe fee warranted, the value of the life estate must be deducted from
tbe value of the fee in estimating the measure of damages for a breach
«f the covenant of warranty.

Alston & Patton^ for the appellants.

Bagsdale & Bapdale, for the appellee.

^ McIVEB, C. J. On the twenty-seventh day of Decem-
ber, 1869, defendant's testator, by a deed containing full cove-
nants of warranty, conveyed a certain tract of land, containing
seventy-four acres, in fee simple to one William Bell, in consider-
ation of the sum of four hundred and fifty dollars. On the 31st
»f August, 1885, all the right, title, and interest of the said
William Bell, by several intermediate conveyances, became
rested in the plaintifF herein. It is conceded that the testator,
Fhomas W. Babb, was not seised of an estate in fee in the said
and, but only of an estate for the life of one Mary Marion,
tnd that such estate passed by the deed of 1869 to the said Wil«

AX. Br, av., YOk XLIX.-a (817)

Digitized by VnOOQ IC

818 AiKBN V. McDonald. [S. Carolina^

liam Bell tnd those claiming under him by the said Beveral soo-
ceBsive intermediate conyeyances, and' finally became Tested in
the plaintiff herein. This life estate terminated by the death of
Mary Marion on the 21st of January, 1886. It seems that, al-
though the life estate of Mary Marion fell in on the day last men-
tioned, the plaintiff herein was not disturbed in her possession
of the premises until the 6th of February, 1890, when the remain-
dermen commenced their action against the plaintiff herein to-
recover possession of the same, of which action the defendants
received due notice. That action resulted in a judgment in fayor
of the remaindermen, xmder which judgment the plaintiff herein
has been eyicted.

Thereupon, this action was commenced to recoyer damages
for the breach of the warranty contained in testator's deed to
the said Williiam Bell, wherein it is claimed that the plaintiff ia
entitled to recover the sum of four hundred and fifty dollars (the
consideration mentioned in the deed from Thomas W. Rabb to
William Bell), with interest thereon from the date of said deed,.

Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 93 of 121)