18 



The Floists* Review 



Septemueii 8, 1921 



there was a verbal agreement for their 

 reservation, would be to permit him to 

 prove a verbal contract, inconsistent 

 with tlie legal import of that executed 

 by the parties under their hands and 

 seals. This the law forbids." 



In the case of Maples vs. Millon, 31 

 Conn. 598, it was decided by the Con- 

 necticut Supreme Court of Errors that 

 trees and shrubs planted in a nursery 

 for the temporary purpose of cultivation 

 and growth became subject to a real 

 estate mortgage covering the premises. 

 The court said: 



"Trees and shrubs are generally as 

 much a part of the realty as the soil 

 itself, whether growing upon it natural- 

 ly, or planted and cultivated by the 

 hand of man. It is, therefore, incum- 

 b(;ut upon the party claiming that they 

 are personal chattels, which do not pass 

 with the transfer of the land, to show 

 that such was not the intention of the 

 parties." 



A conclusion similar to this was 

 reached by the Colorado Supreme court 

 in the case of Dubois vs. Bowles, 30 

 Colo. 44, except that it was there held 

 that during tlie period for redemption 

 from a mortgage, the mortgagor is en- 

 titled to sell, in the ordinary course of 

 trade, such nursery stock as i^ suitable 

 for transplanting. 



In Adams vs. Beadle, 47 Iowa 439, 

 the Iowa Supreme court declared that 

 a mortgage of premises on which nurs- 

 ery stock was growing covered such 

 stock, as against a chattel mortgage 

 given by the mortgagor against the 

 stock. 



Trees in Nursery. 



In passing, it is interesting to note 

 the decision of the appellate division of 

 the New York Supreme court, in the 

 case of Hamilton vs. Austin, 36 Hun 

 Eeports, 138. There it was decided that, 

 although trees grown in a nursery ex- 

 pressly for sale as merchandise are cov- 

 ered by a mortgage on the land, yet it 

 is not waste for a tenant of nursery 

 grounds, who has entered thereon after 

 a mortgage has been given upon them, 

 to remove and sell, in good faith, and 

 in the usual course of business, growing 

 nursery stock, if this be done before an 

 action to foreclose the mortgage has 

 begun, and not in apprehension of the 

 foreclosure or for the purpose of injur- 

 ing the freehold and security. The 

 ■court said: 



"Trees reared in nursery grounds ex- 

 pressly for sale as merchandise possess 

 none of the legal characteristics of fix- 

 tures. Fixtures are articles which have 

 an existence independent of a freehold, 

 and are afterwards annexed to and be- 

 come a part of it. The trees in dispute 

 never had an existence independent of 

 the freehold, were not designed for use 

 in connection with it, but were there 

 solely for growth, and destined to be- 

 come a part of other realty. Nursery 

 trees more nearly resemble emblements 

 [crops], though they are not strictly 

 such, emblements being the annual prod- 

 uct or fruit of things sown or planted. 

 Hops, berries and the like are emble- 

 ments, but the roots and bushes from 

 which they grow are perennial and not 

 strictly emblements. While the rules 

 for determining the rights to fixtures 

 and emblements, as between mortgagors 

 and mortgagees, are not strictly ap- 

 plicable to the question involved, yet 

 they throw some light upon it. Emble- 

 ments reared by tenants entering subse- 

 quent to a mortgage, if growing at the 



time of the foreclosure sale, pass to the 

 purchaser. But if the tenant, in the 

 usual course of husbandry, gathers the 

 emblements before sale on foreclosure, 

 they belong to him, and he is not liable 

 in an action for waste. 



"Waste is an improper destruction or 

 material alteration or deterioration of 

 the freehold, or of things forming an 

 essential part of it, done or suffered by 

 a person rightfully in possession as a 

 tenant, or having but a partial estate, 

 like a mortgagor. It is not waste for a 

 tenant of nursery grounds, entering 

 subsequent to a mortgage, to remove 

 and sell in good faith, and in the usual 

 course of business, growing nursery 

 stock, if done before foreclosure is be- 

 gun, and not in apprehension of fore- 

 closure or for the purpose of injuring 

 the freehold and the security." 



It is to be borne in mind that the 

 cases here under consideration are un- 

 like the one presented for considera- 

 tion, in that this is a case where shrubs 

 were sold for permanent planting, while 

 the cases cited involved situations 

 where nursery stock was in its tempo- 

 rary growing places. Still, as noted, 

 nursery stock is part of the real estate, 



EVERY now and then a 

 well pleased reader speaks 

 the w^ord which is the means 

 of bringing a new^ advertiser to 



Such friendly assistance is thoroughly 

 appreciated. 



Give us the name of anyone from 

 whom you are buying, not an adver- 

 tiser. We especially wish to interest 

 those selling articles of florists' use 

 not at present advertised. 



FLORISTS* PUBLISHING CO. 

 500-60 Caxton BIdg. Chicago 



if not removed in the ordinary course 

 of business by the mortgagor or tenant 

 in possession. These cases are here men- 

 tioned with a view to giving a general 

 survey of the character of trees, shrubs, 

 plants, etc., as part of the real estate 

 on which they are growing. 



A Greenhouse uase. 



Another decision worthy of note is 

 that handed down by the Maine Su- 

 preme Judicial court, in the case of 

 Young vs. Chandler, 102 Maine, 251. 

 Tliat involved a florist 's business, and 

 the facts were as follows: Plaintiff 

 bought from one James Smith, Sr., a 

 greenhouse with its contents, consisting 

 of potted plants, and plants maturely 

 grown but not severed from the soil, 

 and loam prepared for gardening pur- 

 poses. The greenhouse had been re- 

 moved by Smith from its original loca- 

 tion and placed on posts on land belong- 

 ing to his son. The greenhouse was at- 

 tached to a barn, through which a 

 door was cut to communicate between 

 the barn and the greenhouse. A heat- 

 ing plant was installed in the basement 



of the barn, to heat the greenhouse by 

 means of pipes, etc. The land had been 

 previously mortgaged by young Smith 

 to defendant, who foreclosed his mort- 

 gage and became purchaser of the prem- 

 ises at the foreclosure sale. Subse- 

 quently plaintiff attempted to remove 

 the greenhouse, as well as its contents. 

 Passing upon a contest between plain- 

 tiff and defendant as to whether the 

 former was entitled to remove any of 

 this property, the court said: 



"If the defendant's title to the real- 

 ty had been acquired simply by his 

 deed from James G. Smith, by whose 

 consent the greenhouse was erected, his 

 rights would have been subject to the 

 owner of the fixtures, but as he was the 

 mortgagee of the realty at the time the 

 structure was erected, it became a part 

 of the mortgage security and by fore- 

 closure he became the owner by acces- 

 sion, unless his consent to the erection is 

 shown. There seems to be no evidence 

 of his consent, and no fact or circum- 

 stance from which any agreement on his 

 part may be presumed that the green- 

 house should remain personal property 

 after annexation. 



"The status of the other classes of 

 personal property described in the writ 

 is to be determined by the more liberal 

 rule which prevails between landlord 

 and tenant. The plants in pots and fer- 

 tilized loam remaining on the premises 

 were not of the nature of fixtures, but 

 movable property which the florist had 

 the same right to sell as was his ad- 

 mitted right to sell the hothouse plants. 

 The stock plants, which, although ma- 

 tured, had not been severed from the 

 soil, were emblements [products of the 

 soil], which the tenant, or his vendee, 

 had the right to remove during the term, 

 or within a reasonable time after its 

 termination. As to this class of prop- 

 erty, the case is to be distinguished from 

 Bryant vs. Pennell, 61 Maine, 108, 

 where the mortgage included plants and 

 shrubs, and it was there held that the 

 cuttings passed to the mortgagee by 

 accession; but these plants were a new 

 acquisition of property, having no re- 

 lation to any class existing at the time 

 the mortgage was given, and belonged 

 to the tenant as the fruits of his indus- 

 try." 



Right to Lien against Land. 



Coming back to the specific question 

 raised by our correspondent, the query 

 remains: Is A, the nurseryman, entitled 

 to enforce a mechanic's lien against the 

 premises? 



It is doubtful that a lien can be en- 

 forced. It seems that the Illinois me- 

 chanic's lien law, which governs in this 

 case, is not broad enough to cover a 

 case of this kind, although there is no 

 apparent reason why the legislature 

 could not give a lien to nurserymen and 

 florists, as well as to carpenters and 

 painters. 



The Illinois act, as amended in 1919, 

 limits the benefits of a mechanics' lien 

 to builders, etc., and those who "fill, sod 

 or excavate, or do landscape work there- 

 on. " There does not seem to be room 

 for doubt that a lien may be enforced 

 to cover shrubbery, etc., furnished as 

 part of a contract to do landscape work, 

 but it will probably not be argued that 

 selling shrubs to be planted by the buy- 

 er himself around a cottage constitutes 

 landscape work. 



Furthermore, in order to preserve a 

 lien, when granted by statute, steps 



[Continued on page 71.] 



