The courts of most of the American States, however, that have considered the question, hold, expressly, that a sale of growing or standing timber is a contract concerning an interest in lands, and within the fourth section of the Statute of Frauds. Green v. Armstrong, 1 Denio, 550; Bishop v. Bishop, 1 Kernan, 123; Westbrook v. Eager, 1 Harr. (N. J.) 81; Buck v. Pickwell, 27 Vt. 157; Cool v. Box and Lumber Co., 87 Ind. 531; Terrell v. Frazier, 79 Ind. 473; Owens v. Lewis, 46 Ind. 488; Armstrong v. Lawson, 73 Ind. 498; Jackson v. Evans, 44 Mich. 510; Lyle v. Shinnebarger, 17 Mo. App. 66; Howe v. Batchelder, 49 N. H. 204; Putney v. Day, 6 N. H. 430; Bowers v. Bowers, 95 Pa. St. 477; Daniels v. Bailey, 43 Wis. 566; Lillie v. Dunbar, 62 Wis. 198; Knox v. Haralson, 2 Tenn. Ch. 232.
The question is now, for the first time, before this court for determination; and we are at liberty to adopt that rule on the subject, most conformable to sound reason. In all its other relations to the affairs of men, growing timber is regarded as an integral part of the land upon which it stands; it is not subject to levy and sale upon execution, as chattel property; it descends with the land to the heir, and passes to the vendor with the soil. Jones v. Timmons, 21 Ohio St. 596. Coal, petroleum, building stone, and many other substances constituting integral parts of the land, have become articles of commerce, and easily detached and removed, and, when detached and removed, become personal property, as well as fallen timber; but no case is found in which it is suggested that the sales of such substances, with a view to their immediate removal, would not be within the statute. Sales of growing timber are as likely to become the subjects of fraud and perjury as are the other integral parts of the land, and the question whether such sale is a sale of an interest in or concerning lands, should depend, not upon the intention of the parties, but upon the legal character of the subject of the contract, which, in the case of growing timber, is that of realty.
This rule has the additional merit of being clear, simple and of easy application, qualities entitled to substantial weight in choosing between conflicting principles.
Whether circumstances of part performance might require a modification of this rule, is not before the court and has not been considered.
5. In Form of Contract for a Sale.
1 Denio (N. Y.), 550. - 1845.
By the Court, Beardsley, J. - A verbal contract was made between these parties, by which the defendant agreed to sell certain trees then standing and growing on his land, to the plaintiff, with liberty to cut and remove the same at any time within twenty years from the making of the contract. A part of the trees were cut and removed under this agreement, but the defendant then refused to permit any more to be taken, and for this the plaintiff brought his action in the Justice's Court, where a judgment was rendered in his favor. On the trial of the cause the defendant objected to proof of such parol contract, but the objection was overruled. The judgment was removed by certiorari to the Court of Common Pleas of Oneida county, and was reversed by that court, on the ground, as the record states, that the contract, not being in writing, was void by the Statute of Frauds. [ The opinion next disposes of certain technical questions and then proceeds as follows.]
The revised statutesl declare that no "interest in lands" shall be created, unless by deed or conveyance in writing; and that every contract for the sale of "any interest in lands" shall be void unless in writing. (2 R. S. 134, sees. 6, 8.) Certain exceptions and qualifications to these enactments are contained in the sections referred to, but none of which touch the question now before the court: and so far as respects this question the former statute of New York, and the English statute of 29 Charles 2, ch. 3, contain similar provisions. (I. R. L. of 1813, p. 78; Chit. on Cont. 299.)
1 See § 224 of the New York Real Property Law of 1896. - Ed.
The precise question in this case is, whether an agreement for the sale of growing trees, with a right to enter on the land at a future time and remove them, is a contract for the sale of an interest in land. If it is, it must follow that the one declared on in this case, not being in writing, was invalid, and the judgment of the common pleas, reversing that of the justice, was correct and must be affirmed.
And in the outset I must observe, that this question has not, to my knowledge, been decided in this State. It has, however, arisen in the English courts, and in some of those of our sister States; but their decisions are contradictory, and the views of individual judges wholly irreconcilable with each other. Greenleaf's Ev. (2d ed.) sec. 271, and notes; Chit, on Cont. 299 to 302; 4 Kent's Com. (5th ed.) 450-1. We are, therefore, as it seems to me, at full liberty to adopt a broad principle, if one can be found, which will determine this precise question in a manner which our judgments shall approve, and especially if it be equally applicable to other and analogous cases.
By the statute, a contract for the sale of "any interest in lands" is void unless in writing. The word land is comprehensive in its import, and includes many things besides the earth we tread on, as waters, grass, stones, buildings, fences, trees, and the like; for all these may be conveyed by the general designation of land. 1 Shep. Touch, by Preston, 91; 1 Inst. 4; 1 Preston on Estates, 8; 2 Black. Com. 17, 18; 1 R. S. 387, sec. 2; 2 Id. 137, sec. 6. Standing trees are, therefore, part and parcel of the land in which they are rooted, and as such are real property. They pass to the heir by descent as part of the inheritance, and not, as personal chattels do, to the executor or administrator. Toller's Law of Executors, 193-5; 2 Black. Com. by Chitty, 122, note; Rob. on Frauds, 365-6; Richard Liford's Case, 11 Rep. 46; Com. Dig. Biens, (H.) And being strictly real property, they cannot be sold on an execution against chattels only. Scorell v. Boxall, I Younge & Jer. 396; Evans v. Roberts, 5 Barn. & Cress. 829.