refused to sell the farm for less than $18,000 and the reservation of the half of the wheat crop, and that when he insisted upon there being inserted in the agreement provisions that the appellee was to remain on the farm and that he reserved [450] the growing wheat crop, Charles F. Willard, who wrote the papers, said: "It is not worth while, it is not like strangers, we have been friends all our lives, we want only what is right." He had made a mistake in one of the papers which had to be written over again, and Roelkey claims that he again insisted upon those provisions being inserted, and said his son did not understand the omission, and Willard then turned to the son and, addressing him, said: "Dave, Mr. Higdon is to stay on there and your father reserves the growing wheat crop, is that plain enough to you?" Roelkey claims that the reservations were accordingly omitted at the instance of Willard.

The appellee delivered the half of the wheat to a mill for Roelkey, instead of delivering it to the appellants who notified him of their claim to it. The appellants sued him and at first simply had six of the usual common counts in the narr., but amended by adding a seventh count, "For money due for the use and occupation of the plaintiffs' lands in Frederick County, Maryland." The plaintiff finally abandoned all of the counts in the declaration except the seventh. There are twelve bills of exception containing rulings as to the admissibility of evidence, and the thirteenth embraces the prayers,-the plain, tiffs having offered seven, all of which were rejected excepting the fourth, and the defend. ant three, the first and second of which were rejected and the third granted. The case resulted in a judgment for the defendant, and from that this appeal was taken.

As the important question in the case is whether there could be a valid reservation of the wheat crop by parol, notwithstanding the agreement of December 27th, 1910, and the deed in evidence, we will consider that question before referring to the exceptions and prayers separately. Before doing so, however, it will be well to say that we do not understand how the question whether a tenant can deny his landlord's title is involved in this case. That was argued at some length orally and in the brief of the appellants, but there can be no difficulty about the law on that subject. If it was [451] validly agreed between the appellants and Roelkey that the latter was to have the one-half of the wheat crop, it could hardly be contended that the appellee could not defend against this suit by reason of the fact that he is the tenant of the appellants. If, for example, the deed had contained such a reservation, the right of the appellee to defend on the ground that

he had delivered the wheat in pursuance of that reservation could not have been questioned, and therefore we say that the important question is whether there was a valid reservation of the wheat crop.

It cannot be doubted that in this State growing crops, if fructus industriales, such as a crop of wheat, are regarded as chattels and can be sold without complying with the requirements of section 4 of the Statute of Frauds (29 Charles II, Ch. 3). Purner v. Piercy, 40 Md. 212, 17 Am. Rep. 591; Wilson v. Fowler, 88 Md. 601, 42 Atl. 201, 71 Am. St. Rep. 452, 42 L.R.A. 849. In this State even a sale of growing trees to be presently cut and removed by the vendee is not within the operation of that section. Smith v. Bryan, 5 Md. 141, 59 Am. Dec. 104; Leonard v. Medford, 85 Md. 666, 37 Atl. 365, 37 L.R.A. 449. If prior to the passage of the Uniform Sales Act of 1910 (Ch. 346, p. 272) there could have been any doubt about growing crops being chattels, that statute dispels it. In section 97 of Article 83, it is declared that, ""Goods' include all chattels personal other than things in action or money. The term includes emblements, industrial growing crops, and things attached to or forming a part of the land which are agreed to be severed before sale or under the contract of sale." As that act took effect June 1st, 1910, it is applicable to this agreement, which was made December 27, 1910.

Under the decisions in Eichelberger v. Me Cauley, 5 Har. & J. (Md.) 213, 9 Am. Dec. 514, and Rentch v. Long, 27 Md. 188, a sale of a crop not yet thrashed, shucked or gathered was not within the 17th section of Statute of Frauds (29 Charles II, Ch. 3), because work and labor being necessary to prepare it for delivery, it was not a sale of goods, wares and merchandise within the meaning of that section, but that has been changed by the Uniform Sales Act, which reads as follows:

[452] (1) "A contract to sell or a sale of any goods or choses in action of the value of fifty dollars or upward shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action, so contracted to be sold, or sold and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf.

(2) "The provisions of this section apply to every such contract or sale, notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of such contract or sale be actually made, procured or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or

rendering the same fit for delivery; but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller's business, the provisions of this section shall not apply.

(3) "There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods expressed by words or conduct his 'assent to becoming the owner of those specific goods."

Although sub-section (2) has changed the rule announced by our predecessors, if the alleged agreement as to the crop between the appellants and Mr. Roelkey can be said to amount to a contract to sell or a sale, then the latter is the buyer, and the further question arises as to whether he had done any of the things which are a compliance with the statute. That must be answered in the af. firmative, as Roelkey did actually accept and receive the wheat and he did give something in part payment-indeed in payment in full -as he conveyed the property for which the consideration was the $18,000.00 and the reservation of the wheat crop, if his contention in that respect be correct. Moreover, section 25 says that a contract to sell or a sale, shall "not be enforceable by action, unless," etc. Under our decisions a party may defend although the contract cannot be enforced on account of the [453] statute of frauds. Crane v. Gough, 4 Md. 333; Webster v. LeCompte, 74 Md. 258, 22 Atl. 233; see also 29 Am. & Eng. Enc. of Law (2d ed.) 818, 822.

We must therefore consider the question of the validity of a reservation by parol, with the understanding that a growing wheat crop may be treated as a chattel and that the statute of frauds does not stand in the way of the defense in this case of such a reservation. The authorities are not uniform on the subject, but inasmuch as the growing crop can be treated as a chattel, and the owner of the land can undoubtedly sell it as such, we are of the opinion that it is more reasonable and more in accord with the spirit of the decisions in this State to hold that such a crop can be reserved by parol. Of course if a third party deals with the vendee of the real estate, without knowledge of the reservation, another question might arise, but as between the vendor and vendee it seems to us to be more logical to hold that such a crop can be reserved by parol, without infringing upon the rule that the terms of a written instrument or a deed cannot be varied by parol, although there are many decisions to the contrary in other jurisdictions.

In 2 Devlin on the Law of Real Property and Deeds, section 980C, it is said: "On the

ground that parol evidence is inadmissible to contradict or alter the terms of a written instrument, the rule announced in many cases is that it cannot be shown by parol that the grantor reserved the growing crops upon the land conveyed. But in a number of cases a contrary rule is announced. In the first class of cases it is said that to admit the reservation, by parol, of growing crops would be in direct conflict with the rule forbidding the introduction of parol evidence to vary the terms of a written instrument. In the other class it is said that the allowance of a parol reservation of a growing crop is not to contradict the deed, but to show what, in some instances, would pass with the land as a part of the realty has, by the agreement of the parties, been transformed into personalty." The case [454] of Grabow v. McCracken, 23 Okla. 612, 102 Pac. 84, is annotated in 23 L.R.A. (N.S.) 1218, and also in 18 Ann. Cas. 503, and in both of those volumes many authorities are cited in the notes. In that case it was held that a matured crop of corn and wheat standing ungathered upon a tract of land may be specifically reserved by parol in the sale of the land as a part of the contract price or consideration of the deed. The Court cited a large number of cases in which it had been permitted to prove by parol that there was a consideration in addition to the one mentioned in the deed, as that was not contrary to the general doctrine that parol evidence could not be admitted in contradiction of or to vary a written instrument or deed.

In the notes referred to, cases on both sides of the question are cited; among those holding that the vendor may avail himself of a parol exception of growing crops, and that parol evidence is admissible to show that a crop growing on the land was excepted from the operation of the deed, are Heavilon v. Heavilon, 29 Ind. 509; Harvey v. Million, 67 Ind. 90; Benner v. Bragg, 68 Ind. 338; Hisey v. Troutman, 84 Ind. 115; Bourne v. Bourne, 92 Ky. 211, 17 S. W. 443; Flynt v. Conrad, 61 N. C. 190, 93 Am. Dec. 588; Walton v. Jordan, 65 N. C. 170; Baker v. Jordan, 3 Ohio St. 438; Youmans v. Caldwell, 4 Ohio St. 72; Backenstoss v. Stahler, 33 Pa. St. 251, 75 Am. Dec. 592; Harbold v. Kuster, 44 Pa. St. 392; Kerr v. Hill, 27 W. Va. 576. Without now quoting from any of these cases, we are of the opinion that they sustain the position apparently adopted by the lower Court that in this State a reservation of a wheat crop can be validly reserved by the parol agreement of the parties, and the fact that the deed does not include the reservation does not defeat it. There can be no doubt that under our law this wheat crop could be treated by the parties as personal property and if they did agree that it should

be reserved by the vendor when he executed the deed it is manifest that it was not intended to convey it.

[455] While Roelkey was the owner of the reversion he could undoubtedly have sold his interest in the growing crop of wheat by parol, and after the appellants became such owners they could have sold the landlord's interest in the crop, if it was not reserved by Roelkey, As then it is permissible for a vendor to sell such a crop by parol before he conveys the land and as the vendee can sell it, if still his, by parol after he becomes the owner of the land, it seems to us to be illogical to hold that although before executing the deed the vendor and vendee agreed that it should be reserved to the vendor, yet because it was not reserved in the deed itself the execution and delivery of the deed operate to so reattach this chattel to the real estate as to make it realty, and not personalty, and thereby convey to the grantee what was expressly and at the time validly agreed should not go to the grantee. An interest

in a growing crop is of a temporary character, and it uselessly burdens a deed in fee simple to insert such a reservation in it. If a growing crop would necessarily pass by a deed of real estate, regardless of what had been done with reference to it before the deed was made, that would be a good reason for requiring it to be reserved when the deed for the real estate is executed, but as the sale of a growing crop such as this is not the sale of an interest in land but of a chattel, and is now so declared by statute, a deed for the land does not necessarily convey the crop. If Roelkey had sold his interest in this wheat erop to the appellee, or to some other third person, and the appellants knew it, could it be pretended that they could nevertheless in an action for use and occupation recover from the appellee one-half of the value of the wheat simply because the deed did not reserve it? Certainly not, and why then can they recover it, if they agreed that it should be paid to Roelkey? If the appellee had a valid lease, of which the appellants had notice, could they eject him because there was no reservation in the deed in favor of his lease? A tenant may have property so attached to the land as to appear to be a part of the realty, but if it [456] was such property as a tenant has the right to remove, there can be no doubt of his right to prove that it was his, and remove it-notwithstanding a deed had been made which made no such reservation. The case of Baker v. Jordan, 3 Ohio St. 438, is so well reasoned out and in our judgment announces such a wise and correct rule, that we will quote at some length from it. It concludes as follows: "A deed purports to convey the realty. But what is the realty? Growing corn may be

part of it, for some purposes, but it is generally to be considered as personalty. If the parties to a deed either by words or their behavior signify their understanding that as between them it is personalty, the law will so regard it, and will respect their intention in the construction of the deed. When the evidence of such understanding is produced, it is not to contradict the deed, for with that it is perfectly consistent, but it is to show that what in some instances would go with the lands as part of the realty, was, in that case, converted into personalty by the will of the parties, and thus to hold the deed to its true meaning and effect."

Without deeming it necessary to determine whether under our decisions it could be shown that the reservation of the wheat crop was a part of the consideration for the deed, and therefore parol evidence was admissible on that ground, we are satisfied to base our conclusion on the ground announced in Baker v. Jordan, supra, and other cases adopting the same view. We understand the position taken by such cases in effect to be, that a conveyance of land may or may not have been intended by the parties to include growing crops, such as wheat, corn, etc., and hence that such a crop does not necessarily pass by a deed for the land, but on the contrary if before the conveyance it has been by the action or agreement of the parties converted into personalty, parol evidence is admissible to prove that fact. That is so for the ob

vious reason that when a deed for real estate is made, it does not convey personal property on or in the land, and if a crop [457] has been so dealt with by the parties before the execution and delivery of the deed as to make it personal property, the parties did not intend the crop to pass with the land. In other words the crop is not included in the sale of the land, and if it be not permitted to prove the previous dealings of the parties the deed would convey what was not sold. A growing crop of wheat is not such a character of property under our decisions, or under our statutes, as to necessarily pass with the land in which it is growing, in the absence of a reservation in the deed of conveyance.

We therefore hold that it was permissible to submit to the jury the question whether it was agreed between the appellants and Roelkey before the sale was consummated that the latter should have the growing crop of wheat, and that if they so found (as they did) this action could not be maintained against the appellee.

We will briefly refer to the exceptions. The first and second are not pressed. The third, fourth, fifth, sixth, seventh, eighth, ninth and tenth were to the admission of testimony in reference to the parol agreement

about the wheat crop. From what we have said it will be seen that such testimony was admissible. The eleventh was to the action of the Court in sustaining an objection to a question asked Charles F. Willard: "What steps did you take to protect yourself against the delivery of the wheat?" We do not understand how that ruling could have injured the appellants, in view of our conclusion on the main question. There was no error in the twelfth exception. Without discussing the prayers separately, we are of opinion that the plaintiff's fourth and the defendant's third, which were granted, were sufficient to fairly present to the jury the real question involved in the case, and we will affirm the judgment.

Judgment affirmed, the appellants to pay the costs.

NOTE.

Validity of Parol Preservation of Crops by Vendor of Land.

The reported case seems to be the only recent decision involving the validity of a parol reservation of crops by a vendor of land. The authorities are not uniform on the subject, and in holding that the vendor of land may avail himself of a parol reservation of growing crops, and that parol evidence is admissible to show that a crop growing on land was excepted from the operation of the deed, the Maryland court follows the minority view, as will be seen by reference to the notes to Grabow v. McCracken, 18 Ann. Cas. 503, and Bjornson v. Rostad, Ann. Cas. 1915A 1151, wherein the earlier cases are reviewed. See also the note to In re Anderson, 131 Am. St. Rep. 621.

estate, and agreed to contract no bills on his credit, cannot be construed as an agreement not to sue for separation for a pre-existing cause unknown to the innocent party.

[See note at end of this case.] Same.

A valid separation agreement does not bar the husband's petition for divorce from bed and board on the ground of the wife's adultery unknown to him when he entered into such agreement, nor, in the absence of an express stipulation against a suit for divorce for pre-existing causes then known to the other party, prevent either party from ntaintaining an action for divorce, either absolute or limited, whether the cause therefor occurred before or after such agreement. [See note at end of this case.]

Same.

The plea alleges, in substance, that on the 24th day of October, 1907, because of the fact that the marital relations between the petitioner and petitionee were not pleasant, and being unable to live happily as husband and wife, they entered into the following agreement:

"An agreement, made and entered into by and between James C. Canning, of Montpelier, in the County of Washington and State of Vermont, of the first part, and Martha Canning, [494] of said Montpelier, in the County of Washington and State of Vermont, of the second part.

Witnesseth: That whereas the said James C. Canning and Martha Canning, being husband and wife, and whereas their marital relations are not pleasant; therefore, in consideration of the covenants, agreements, grants, releases and stipulations hereinafter expressed, agreed upon and consented to, the said James C. Canning and Martha Canning are to separate and live separately and apart from each other until said marital relations are severed by the decease of one or the other of said parties.

In consideration of the covenants and agreements hereinafter set forth, the said James C. Canning hereby agrees to pay, or cause to be paid, to the said Martha Canning the sum of six dollars per week, said sum to be paid to the said Martha Canning every week during the lifetime of the said James C. Canning, but if the said Canning should decease within four years from the date of this instrument, then the said six dollars per week is to be paid out of his estate up to a period of four years from October 24th, A. D.

1907...

The said James C. Canning, for himself and his heirs, further agrees, for the consideration hereinafter expressed to remise, release and waive any and all claims to any property, real or personal, which he might have or would have in and to the property of the said Martha Canning, as her husband.

The said Martha Canning, for herself, her heirs and assigns, for the consideration of the agreements above set forth, to be performed by the said James C. Canning, agrees as follows: to accept said six dollars a week during the lifetime of the said James C. Canning; to release all her right, title and interest to and in the real estate of the said James C. Canning by signing, as wife of the said James C. Canning, a deed conveying said real estate to

as trustee for the said James C. Canning; to remise, release and waive any and all claims she may or might have in and to the estate of the said James C. Canning, as his wife, or, at his decease, as his widow; to contract no bills in the name of the said James C. Canning from the date of the execution of this instrument; to vacate the house of the said James C. Canning, located on North Street, in the City of Montpelier, immediately upon the execution of this agreement.

Both of said parties, by this instrument, mutually agree to live apart, and separately from each other during their natural lifetime, and at the decease of either the other shall make no [495] claim to, or assert any interest in, the property of the deceased. Dated October 24th, A. D. 1907.

JAMES CANNING (L. S.).
MARTHA CANNING (L. 8.).

In the presence of

FRED L LAIRD,

MARY CANNING."

The plea further alleges that the petitionee has fully performed said agreement on her part and that the same is in full force and effect. One of the alleged grounds of divorce is adultery claimed to have been committed by the petitionee prior to the date of the separation agreement. In his replication the petitioner alleges that at the time of making the pretended agreement for separation, set forth in the petitionee's plea, he had no knowledge, information or belief as to the fact that the petitionee had committed the crime of adultery, as alleged in his petition for divorce. The petitionee contends that the agreement pleaded is an undertaking on the part of both parties to remain husband and wife, living separate and apart from each other, until the death of one of them. Conceding that the agreement amounts to an undertaking to remain husband and wife "until death doth us part," it is, in that behalf, but a confirmation of their marriage vows. It contains no express promise not to sue for separation for causes afterwards arising and we think cannot be construed into an agreement not to do so for a pre-existing cause unknown to the innocent party.

The petitionee relies upon Squires v. Squires, 53 Vt. 208, 38 Am. Rep. 668, in support of her claim that the agreement is a bar to this petition. That was a libel for divorce on the ground of intolerable severity and the contract was entered into after the separation had occurred through the intervention of a third person acting for the wife. From the very nature of the alleged cause of divorce it must have occurred before the separation and must have been known to the petitioner at the time of the agreement was