(s) See preceding note.

(t) Thayer v. Rock, 13 Wend. 53; Mayfield v. Wadsley. 3 B. & C. 357; Earl of Falmouth v. Thomas, 1 Cromp. & M. 89; Michelen v. Wallace, 7 A. & E 49;

Vaughan v. Hancock, 3 C. B. 766; For-quet v. Moore, 7 Exch. 870, 16 Eng. L. & Eq. 466. But this rule must be confined to cases where the contract for the land, and the crops standing upon it, is entire. See ante, p. *31, n. (r).

1 In Marshall v. Green, 1 C. P. D. 55, it was held that a sale of growing timber to be taken away as soon as possible by the purchaser was not a contract for the sale of land or any interest therein within the 4th section of the statute. Lord Coleridge, C. J. quotes as stating the law accurately the note to Duppa v. Mayo, Williams' Saunders, 395, and Brett, J., after also referring to this note, said. "Where the subject-matter of the contract is growing in the land at the time of the sale, then if by the contract the thing sold is to be delivered at once by the seller, the case is not within the section. Another case is where, although the thing may have to remain in the ground some time, it is to be delivered by the seller finally, and the purchaser is to have nothing to do with it until it is severed, and that case also is not within the section. Then there comes the class of cases where the purchaser is to take the thing away himself. In such a case where the things are fructus industrials then, although they are still to derive benefit from the land after the sale in order to become fit for delivery, nevertheless it is merely a sale of goods and not within the section. If they are not fructus industrtales, then the question seems to be whether it can be gathered from the contract that they are intended to remain in the land for the advantage of the purchaser, and are to derive benefit from so remaining; then part of the subject-matter of the contract is the interest in land, and the case is within the section. But, if the thing, not being fructus industrials is to be delivered immediately, whether the seller is to deliver it or the buyer is to enter and take it himself, then the buyer is to derive no benefit from the land, and consequentlv the contract is not for an interest in the land, but relates solely to the thing sold itself." The case of Marshall v. Green is discussed and somewhat cirticised by Chitty, J. in Lavery v. Pursell, 39 Ch. D. 508. In this country where the subject-matter of a sale is growing in the land at the time of the sale, it is held, in substantial agreement with Marshall v. Green, by the courts of a few States that the case is not within the statute if the thing sold is to be delivered at once. Cain v McGuire, 13 B. Mon. 340; Moss v. Meshew, 8 Bush, 187, 190; Cutler v. Pope, 13 Me 377; Smith v. Bryan, 5 Md. 141; Whitmarsh v. Walker, 1 Met. 313; Poor v. Oak man, 104 Mass. 316; McClintock's Appeal, 71 Pa. 365. But in many jurisdictions the distinction is taken between fructus naturales and fructus industrials, and if the subject-matter of the sale is fructus naturales, as growing trees, the case is within the statute. Cool v. Peters, etc Co. 87 Ind. 531; Hostetter v. Auman, 119 Ind. 7; Jackson v. Evans, 44 Mich. 510; Lyle v. Shinnebarger, 17 Mo. App. 66; Howe v. Batchelder, 49 N. H. 204; Slocum v. Seymour, 36 N. J. L. 138; Green v. Armstrong, 1 Denio. 550; Lillie v. Dunbar, 62 Wis. 198. In most of the cases last cited the facts were substantially the same as in Marshall c. Green, and the decision contrary to that case. If growing trees are sold which are not to be delivered immediately, the sale is clearly within the statute. Miller v. Zufall, 113 Pa. 317; Buck v. PicknellVt. 157.

they may be sold as chattels, and are not within the statute. And it is only when the parties connect the land and its growth together, either by express words or by the nature of * the contract, that the growth of the land comes within the statute. It seems to be settled, that a promise to pay for improvements on land, is only a promise to pay for work and labor, or materials, and not for an interest in lands, and therefore need not be in writing, (u) And a contract for the sale of removable fixtures is not within the statute (v)l A contract for the sale of growing trees, with a. right to enter and take them away, is a contract for the sale of an interest in lands; but after the trees are sold they become personal property, and may be sold by parol (vv) 2 An agreement to release dower must be in writing, (vx) 3 A mere license to use land, as to stack hay or grain upon it for a time, is not an interest in lands within the statute. (w)4

(u) Frear v. Hardenbergh, 5 Johns. 272; Benedict v Beebee, 11 Johns. 145; Lower v. Winters, 7 Cowen, 263; Garrett v. Malone, 8 Rich. Law, 335. The plaintiff conveyed to defendant a tract of land, as containing one hundred and ten acres, at eight dollars per acre, and it was verbally agreed between them that the land should be surveyed, and if it turned out that it contained less than one hundred and ten acres, plaintiff should refund; and if it contained more, plaintiff should pay for all over one hundred and ten acres at the rate of eight dollars per acre. Held, that the agreement was not within the statute.

(v) Bostwick v. Leach, 3 Day, 476; Hallen v. Runder, 1 Cromp. M. & R. 266; Lee v. Gaskell, 1 Q B. D. 700; Slocum v. Seymour, 7 Vroom, 138.

(vv) Kingsley v. Hol brook, 45 N. H. 313. And see Huff v. McCauley, 53 Pa. 206. See ante, p. n.

(vx) Lothrop v. Foster, 51 Me. 367.

(w) Carrington v. Roots, 2 M. & W. 248; Riddle v. Brown, 20 Ala. 412; Mumford v Whitney, 15 Wend. 380; Whit-marsh v. Walker, 1 Met. 313; Woodward v. Seely, 11 111.157; Stevens v. Stevens, 11 Met. 251; Houghtaling v. Houghtal-ing, 5 Barb. 379; Wolfe v. Frost, 4 Sandf.

1A sale of the building materials of a house which is to be torn down, the removal to be made by the veudee, has been held a contract for the sale of an interest in land. Lavery v. Pursell, 39 Ch. D. 508; Meyers v. Schemp, 67 111. 469. On the other hand a contract for the sale of an entire building to be removed by the vendee has been held not within the statute. Long v. White, 42 Ohio St. 59. So au agreement to allow one to remove a building which he has erected on another's land. Rogers v. Cox, 96 Ind. 157; Keyson v. School District, 35 N. H. 477.