Erskine v. Plummer , 7 Me. 447 ( 1831 )

The opinion of the Court was road at the ensuing September term, as drawn up by

Weston J,

The title of the plaintiff to the timber, for the proceeds of which this action is brought, is contested by the defendant, The timber, with the land upon which it stood, originally belonged to Levi B. Erskine, who, at the time he made the sale relied upon by the plaintiff; had a right to dispose of it against all persons except the Tuckermans, to whom the land had been mortgaged, Was the sale of the timber, being by parolj good between, the contracting parties, so as to pass the property in the timber to the plaintiff? Upon this question there has been some vacillation in the authorities. In an anonymous case, reported in 1 Ld. Raymond, 182, the court held that the sale of growing timber by parol was not void by the statute, of frauds, it being regarded as a chattel, and not as an interest in land.' Bufa sale of growing grass, iCrosby v. Wadsworth, 6 East 602, was held to be within the staute. In Parker v. Staniland, 11 East 362, a sale of potatoes bparol in the ground, then grown, was sustained but a sale of growing turnips was held by the court, in Emerson v. Heelis, 2 Taunt. 38, to be within the statute. In Warwick v. Bruce, 2 Maule & Selw. 205, a sale of potatoes then growing was decided not to be an interest in land, requiring a written contract. Teal v. Auty, 2 Brod. & Bing. 99, was assumpsit for the price of certain poles, which had been sold while standing and growing, to the defendant. The original contract was held to embrace an interest in land, which could not be enforced without evidence in writing 5 but the contract being executed, and the poles actually cut and carried away by the defendant, the court decided he was liable for their value, if that could be proved. In New York the sale of a growing crop by parol has been held good, and the authority of Crosby v. Wadsworth questioned. Newcomb v. Ramer, 2 Johns. 421, in note. Freer v. Hardenburgh, 5 Johns. 271. In Connecticut the sale of gravel, stones, timber trees', which by the contract are to be separated and carried away, and the boards and bricks of a house, to be pulled down and taken off, is deemed not within the statute.

Standing timber is annexed to the freehold, passes with it, and often constitutes a great part of its value. A parol sale of the tim-her, to remain on the land during the pleasure of the buyer, or for 'an indefinite period, might affect injuriously subsequent purchasers of the land; but if to be cui and carried away within a reasonable bine, or as soon as it can conveniently be done, is not liable to the same objection. Trespass would not lie by the original owner, for entering and cutting under such a contractj for it would at least amount to a license, which need not be in writing. Cook v. Stearns, 11 Mass. 533. The trees when cut may clearly be sold by parol, like any other chattel. But a license is in its nature revocable ; and a sale of the land, without reservation, before the timber is cut, would doubtless he held to be a revocation or determination of tbo licence. And this would suiBcicsilly protect the interest of the purchaser of the land. Upon this ground, the sale ■oí' timber to be cut and carried away when cut, would pass the property. And the purchaser would be thereby licensed to enter for this purpose, so long as the license remained unrovoked. If (hose principles are tenable, the sale Lu question was good, although made by parol. Bui apon ibis point wo give no decided opinion, being fully satisfied that the sale was good between the parties as a contract executed. The plaintiff entered under the contract, and by permission of the owner, cut tito timber, carried it away, and paid the full consideration demanded. The actual receipt of the price constituted a sale of she timber, after it Was severed, if it was not consummated before. After it was severed, there could be no pretence that it constituted an interest isi land, and a sale thus made is entirely relieved from any objection arising under the statute of frauds.

But this sale was made, subject to ib.c paramount rights of the Tuckcrmms, in whoso place the defendant claims to stand, by substitution. Had the proceeds of this timber been applied to the payment of their demand, either before the assignment or after-wards, it would have extinguished the demand pro tanto ; bat the dofoudaiu, having claimed and received the whole without deduction, cannot be permitted to say that it was so applied. It would bo falso as wdl as unjust. The defendant was employed by the plaintiff lu haul the Umber for Mm, and ho sold it and convotUsd the proceeds to his own use. Upon these facts, ho is satsworabic tw die plaintiff for the sunt received, unless ho applied it in part pay-xicar of tho mortgage ; but this ho has not dcuc i and it he eves-intended to do it, he'waived his right to make such application when he received the whole amount, without allowing it.

Judgment on the verdict„