It also appears by the case stated, that Kingsbury sold the timber in question, to one Joseph S. Hyde, twenty-six days before his deed to Veazie, with the right to take it off for twelve years from the date of the sale. Whatever the rights of the defendants may be, the plaintiffs, by their own showing have none.

The judgment is reversed, and judgment on the case stated for the defendant.

c. Separate sale or mortgage of fructus naturales - how made.

(1.) The General Rule.

Hirth V. Graham

50 Ohio State, 57. - 1893.

[_Rcported herein at p. 34.]

Killmore V. Howlett

48 New York, 569. - 1872.

Action for damages for breach of a parol contract by which defendant agreed to cut the trees then standing and growing on his lot into cord-wood and deliver the same to plaintiff at his wood yard.

Judgment for plaintiff. Defendant appeals.

Gray, C. - If the standing trees upon the lot, which by the contract were to have been cut by the defendant and made into cordwood, and delivered by him to the plaintiff at Syracuse,.had, instead of the wood to be made therefrom, been sold in their standing condition, " rooted in the soil," the right of the plaintiff to enter and fell them, and make them into wood, would have been a sale of an interest in the land, and without being evidenced by writing would have been void. Green v. Armstrong, I Denio, 550, 553, et seq. This was not a sale of the trees in their standing condition, but rather a contract by the defendant to bestow work and labor upon his own material, and deliver it in its improved condition to the plaintiff. In a similar case, Littledale, J., in Smith v. Surnam, 9 B. & C. 561, 566, held it not to be the intention to give the vendee any property in the trees until they were severed from the freehold. Apply the rule contended for by the defendant, and a writing would be indispensable to the validity of a contract by the owner of a peat bed or a sandbank to deliver a load from it. Such contracts are never regarded as carrying an interest in the real estate from which the thing sold was to be taken by the owner. The judgment should be affirmed.

1 See also Green v. Armstrong, 1 Den., 550, reported supra, p. 38.

Judgment affirmed.

(2.) The Kentucky Doctrine.

Byassee V. Reese

4 Met. (Ky.), 372. - 1863.

Bullitt, J. - Byassee filed a petition alleging that he had purchased from one Head, agent of one Walters, 100 trees standing upon land belonging to said Walters; that he was to have choice of the trees standing upon said land, and selected and marked 100 trees which said Head agreed he should have; and that Reese, with knowledge of plaintiff's right thereto, was cutting them down, and converting them to his own use; and praying that he might be enjoined from doing so, and for damages for those that had been converted.

Reese did not controvert any of those allegations in the manner required by the Code of Practice, (section 125,) except the allegation, that he had cut any of the trees marked by the plaintiff; but it was proved that he had cut some of them, and in his answer he claimed the right to cut them all; averring that the land had been decreed to Mrs. Walters by the Louisville chancery court, in a divorce suit, that she had sold it to Moss, and that Moss had sold it to defendant. But these averments were not sustained by any evidence.

Byassee appeals from a judgment dismissing his petition.

We find in the record a copy of a paper purporting to have been signed by Head, which contains written evidence of said sale of trees, but we cannot consider the paper, because it is not referred to in the petition. As the petition does not aver that the contract was in writing, nor refer to any writing, we must assume that it was a verbal contract. 15 B. Mon. 443; 3 Met. 474.

The first question is, whether or not a sale of standing trees is embraced by that provision of the statute of frauds which relates to contracts for the sale of land. This question has produced some conflict of opinion. But, according to the weight of authority, a sale of standing trees, in contemplation of their immediate separation from the soil, by either the vendor or the vendee, is a constructive severance of them, and they pass as chattels, and, consequently, the contract of sale is not embraced by the statute. Green, Ev., sec. 271. And such is the ruling of this court. Cain v. McGuire, 13 B. Mon. 340.

The phrase, "in contemplation of immediate separation from the soil," is used to distinguish a sale of standing trees, or growing crops, which passes no interest in the land, except a license to enter upon it for the purpose of removing them, from a contract conferring an exclusive right to the land for a time for the purpose of making a profit out of the growth upon it. (See authorities above cited.)

The case under consideration clearly belongs to the former class, though it does not appear that any definite time was fixed for the removal of the trees.

As the trees were sold as chattels, the selection and marking of them by the purchaser, with the knowledge and consent of the vendor, was a constructive delivery, and the title vested in the purchaser.

But, though Byassee may be entitled to the trees, as against Walters, yet, if Reese, or his vendor, acquired title to the land by a bona fide purchase, for a valuable consideration paid, before he had notice of Byassee's right to the trees, Reese is entitled to them, and Byassee must look to Walters for damages. In such a state of case, the fact that Reese had notice of Byassee's claim, before cutting the trees, would be immaterial. But, if Reese had no title to the land, he was not entitled to notice.

Upon the return of the cause each party should have leave to amend his pleadings.

The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.1