Story Case

Mr. Silas Hoover lived in southern Missouri during the Civil War. He owned a large orchard of apples, which were just ripening as the western wing of Grant's army was pressing through the south central states toward New Orleans. One day an officer of the Union forces rode up to the Hoover Manse and presented a writ to Mr. Hoover, by which he was informed that, under the act of Congress permitting officers to requisition any personal property either in friendly or unfriendly territory, his orchard was hereby requisitioned by the fourth and fifth Illinois regiment. Mr. Hoover was not excited, and examined the writ carefully. Finally, he addressed the officer and asked if they had the authority to take real estate. "That is expressly foredden," replied the officer. "Then," said Mr. Hoover, "You can't take my orchard. The fruit is not quite ripe, and as long as it is on the trees it is real estate." .Mr. Hoover argued so earnestly that his case was reported to General Grant. What should he have decided?

Ruling Court Case. Sparrow Vs. Pond, Volume 49 Minnesota Reports, Page 412

Pond owned eighty acres of land, upon which he lived. He planted about two acres to blackberries. He cultivated and hoed them in the spring and summer as farmers do corn; he strung wires along the rows to hold up the bushes from the ground; in the fall he cut out the old wood, laid down new shoots, and covered them with mulch for protection during the winter. Sparrow had recovered a judgment against Pond for $364.04. The Sheriff levied upon the ripening crop of blackberries and sold it to Sparrow for $475. Sparrow went upon the land with pickers to gather the ripe berries. Pond interposed and drove him away. Sparrow then brought this action for possession of the berries.

Pond claimed that these berries were a part of the realty and not subject to be sold, upon an attachment as personal property.

Mr. Justice Mitchell said: "At Common Law, those products of the earth which are annual, and are raised by yearly manurance and labor, and essentially owe their annual existence to the cultivation by man, termed 'emblements,' were, even while still annexed to the soil, treated as chattels, with the usual incidents thereof as to seizure on attachment during the owner's life and transmission after his death. This class included grain, garden vegetables, and the like. On the other hand, the fruit trees, perennial bushes, and grasses growing from perennial roots, and called by way of contradistinction, 'fructus naturales,' were, while unsevered from the soil, considered as pertaining to the realty, and as such passed to the heir at the death of the owner, and were not subject to attachment during his life." It was decided that these blackberries were 'fructus naturales,' and not subject to attachment as personal property. Judgment, therefore, was given for Pond.

Ruling Law. Story Case Answer

It has been pointed out that natural fruits, or fruc-tus naturales, are regarded as a part of the real estate, because of the permanent character which they have. As a general rule, they do not require annual planting by the occupant of the land; and require no continuous activity on his part to bring them to fruition. Since they are regarded as a part of the real estate, the same rules apply to the sale of mortgage of such fruits as apply to the land itself. Consequently, an oral contract for the sale of standing timber is not enforcible, because it is regarded as a part of the realty, and a contract for the sale of realty must be evidenced by some written memorandum.

In the Story Case, the strictest application of legal rules will not permit the orchard to be taken, for the reason that the trees arc real estate and fruit also, until severed from the trees.