Goodrich v. Jones — 2 Hill & Den. 142

Majority

p. 142

Goodrich vs. Jones.

Headnote

Fencing materials on a farm, which have been used as part of the fences, but are temporarily detached, without any' intent of diverting them from their use as such, are a part of the freehold, and pass by a conveyance of the farm to a purchaser.

So as to manure lying in a bam-yard on the farm at the time of the conveyance; and this, semble, though laid up in heaps.

On error from the Tioga common pleas. Jones sued Goodrich before a justice in trover, for taking and converting

p. 143

manure and boards, {inter alla,) the alleged property of Jones. The proof before the justice was, that in September, 1835, Jones contracted to sell a farm to Goodrich, for a money consideration payable 20th April, 1836.' Under this agreement, Jones, by Goodrich’s consent, conveyed a part of the farm to one Yose, and the residue to Goodrich, who claimed and converted to his own use certain fence boards lying on Yose’s part; and certain manure in the barn-yard on his own part. This was after the deeds were executed. At the time of the deed to Yose, the boards were on the premises. They had all been in fence on that part and some still remained so; though a good many of them were displaced, some let down and some blown down. The manure lay in the barn-yard, on Goodrich’s part, where it had been accumulating for a long time. The conversion of both by Goodrich was proved; but the justice holding that both passed by the deeds, rendered a judgment for him, (Goodrich.) On certiorari by Jones, the C. P. reversed the judgment, on the ground “ that the manure was personal property, and did not pass to the vendee.” Goodrich brought error to this court.

N. W. Davis, for the plaintiff in error.

J J. Taylor, for the defendant in error.

By the Court,

The common pleas appear to have taken the same view of Goodrich’s, or rather Yose’s title to the boards, as did the justice. There cannot be a doubt that they were right. Fences are a part of the freehold; and that the materials of which they were composed are accidentally or temporarily detached, without any intent in the owner to divert them from their use as a part of the fence, works no change in their nature. (Vid. Walker v. Sherman, 20 Wendell, 639, 640.)

With regard to the manure, we have held that even as between landlord and tenant, it belongs to the former; in other words, it belongs to the farm whereon it is made.

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This is in respect to the benefit of the farm, and the common course of husbandry. The manure makes a part of the freehold. (Middlebrook v. Corwin, 15 Wendell, 169.) Nay, though -it be laid up in heaps in the farm-yard. (Lassell v. Reed, 6 Greenl. 222. Daniels v. Pond, 21 Pick. 367 .)^[1] The rule has always been still stronger in favor of the vendee as against vendor, and heir as against executor. In Kittredge v. Woods, (3 N. Hamp. Rep. 503,) it was accordingly decided, that manure lying in a barn-yard passes to the vendee.. (See also Daniels v. Pond, before cited.)

The case of Kittredge v. Woods, was very well considered; and the right of the vendee to the manure, whether in heaps or scattered in the barn-yard, vindicated on principle and authority I think quite satisfactorily.

There are several English dicta which conflict with our views of the right to manure, as between landlord and tenant, and that of the court in New-Hampshire, as between vendor and vendee. (And vid. 2 Kent’s Com. 346, note c, Ath ed., and Carver v. Pierce, Sty. 66.) But they may all be considered as repudiated by Middlebrook v. Corwin. Tide the introductory remarks of Mr. Justice Nelson, 15 Wend. 170 .

The judgment of the common pleas must be reversed; and that of the justice affirmed.

Judgment reversed.

(a) (a) See Staples v. Emery, 7 Greenl. 203.