The vegetable products of the earth have been classified as fructus naturales and fruc tus industriales. In the former class are included everything which grows spontane ously or without animal cultivation,. such as trees or grass. In the second class are in cluded crops which are the subject of yearly planting and cultivation. By an arbitrary rule, fructus industriales are treated in every case as goods, whether matured or not at the time when by the terms of the bargain they were to be sold; Bryant v. Crosby, 40 Me. 9; Whitmarsh v. Walker, 1 Mete. (Mass.) 313; Kerr v. Hill, 27 W. Va. 576 ; Bull v. Griswold, 19 Ill. 631. It has been held that a crop of peaches or other orchard fruit is to be classed as fructus industriales; Purner v. Piercy, 40 Md. 212, 17 Am. Rep. 591; Smock v. Smock, 37 Mo. App. 56. Wa ter when separated from a stream or lake becomes personalty ; Jersey City v. Harri son, 71 N. J. L. 69, 58 Atl. 100. Ice which has been cut is personal property; Higgins v. Kusterer, 41 Mich. 318, 2 N. W. 13, 32 Am, Rep. 160. Minerals when severed from the realty become goods. Manure is (till the time when mixed with the soil) an inci dent of the real estate of such peculiar char acter that while it remains only constructive ly annexed, it will be personal property If the parties interested agree so to treat it; Strong v. Doyle, 110 Mass. 92. If the contract is to sell and deliver a house, even though the house is at the time of the bar gain affixed to the realty, it Is a contract for the sale of goods, for the parties con tract to buy and sell a house separated from the realty and moved from its foundations ; Long v. White, 42 Ohio St. 59. The deci sions are conflicting upon the question as to whether chases in action are within the stat ute. Shares of stock, bonds and mortgages have been held within the statute; Banta v. Chicago, 172 III. 204, 50 N. E. 233, 40 L. R. A. 611; Greenwood v. Law, 55 N. J. L. 168, 26 At]. 134, 19 L. R. A. 688; Somerby v. Buntin, 118 Mass. 279, 19 Am. Rep. 459. The sale of an undivided share of goods is within the statute; Gerudt v. Conradt, 117 Wis. 15, 93 N. W. 804. See FRAUDS, STATUTE OF ; Ex CHANGES.
Subject-Matter of the Contract. Potential possession. In Grantham v. Hawley, Hob. 132, it was held that in certain cases a seller might transfer title to goods which he did not then own. The case related to a future crop of corn and it was held that a buyer of the corn from a lessee of the land had a bet ter title than the reversionary owner of the lease, though at the time of the litigation the lessee's estate had ended. The mart said: "And though the lessor had it not actually in him, nor certain, yet be had it potentially ; for the land Is the mother and root of all fruits. Therefore he that bath it may grant all fruits that may arise upon it after, and the property shall pass as soon as the are extant. But a man cannot grant all the wool that shall grow upon his sheep that he shall buy hereafter; for then he bath it neither actually or potentially." In this country this doctrine has received frequent recognition in the cases of the trans fer of crops to be thereafter grown. It is held in most of the states where the question has arisen that the owner of land may mort gage a future crop ; Briggs v. U. S., 143 U. S.
346, 12 Sup. Ct. 391, 36 L. Ed. 180; Kelley v. Goodwin, 95 Me. 538, 50 Atl. 711; Weil v. Flowers; 109 N. C. 212, 13 S. E. 761; in a few states, however, the crop must be actual ly planted ; Redd v. Burrus, 58 Ga. 574; Cole v. Kerr, 19 Neb. 553, 26 N. W. 598 ; Cudworth v. Scott, 41 N. H. 456. If the legal title to a future crop passes, It would seem that a man might mortgage the crops on his land any number of years in advance, and the fact that the mortgage must he recorded is immaterial, for the purchaser may have no !means of knowing where the record is and hence in some states a limitation of time is imposed. Thus in Alabama, Arkansas, Min nesota, and South Carolina, the statutes pro hibit such mortgages made either prior to the I 1st of January preceding the planting of the crop, or more than a year before its planting. In the absence of such a statute, it has been held that an unlimited grant of the future crops Is invalid ; Shaw v. Gilmore, 81 Me. 396, 17 Atl. 314. This doctrine has been ap plied occasionally to transfers of the future young of animals; Andrews v. Cox, 42 Ark. 473, 48 Am. Rep. 68. The doctrine is consid ered objectionable since it means that when the goods come into existence, title to them passes free from any defects of title due to rights which have accrued since the time of the original bargain; Williston, Sales, § 133.
By the Sales Act: (1) The goods which form the subject of a contract to sell may be either existing goods, owned or possessed by the seller, or goods to be manufactured or acquired by, the seller after the making of the contract to sell, In the act called future goods, the acquisition of which by the seller depends upon a contingency which may or may not happen. (3) Where the parties purport to effect a present sale of future goods, the agreement operates as a contract to sell the goods.
The English Sale of Goods Act makes no distinction between one class of future goods and another ; and so it may be assumed that the doctrine of potential possession is abolish ed. The Sales Act aims to abolish the doc trine altogether from the law of sales, wbat ever may be the rule in regard to mortgages.
Undivided shares. In Kimberly v. Patcbin, 19 N. Y. 330, 75 Am. Dec. 334, the buyer bought 6,000 bushels of wheat from two piles, aggregating 6,249 bushels, but of which the quantity had not been determined. The sel ler signed a receipt acknowledging that he held 6,000 bushels subject to the order of the buyer, and the buyer paid a portion of the price. The court held that title passed to the purchaser. The line of reasoning followed by the court was that it was possible for two or more persons to own goods confused In an undistinguishable mass of undetermined amount, and the parties, if they so intended, could by agreement bring about such owner ship. England denies the possibility of trans ferring title to a specified portion of a mass; 13 East 522. In America this doctrine has received its fullest application In grain ele vators; Woodward v. Semans, 125 Ind. 330, 25 N. E. 444, 21 Am. St. Rep. 225; Ledyard v. Hibbard, 48 Mich. 421, 12 N. W. 637, 42 Am. Rep. 474 ; James v. Plank, 48 Ohio St. 255, 26 N. E. 1107; Young v. Miles, 23 Wis. 643.