Administrator of Pike v. Morey

32 Vt. 37 | Vt. | 1859

Bennett, J.

The plaintiff, as the administrator of Pike, claims title to the bark in question under a levy and sale on execution against Benjamin Comings; and the question is, did the bark belong to the defendant, or was it the property of Benjamin Comings ?

It seems the defendant was the owner of a lot of land, and that he sold it to Comings by a verbal contract, and that Comings advanced for the nse of the defendant a part of the purchase money, and went into possession under an express agreement of the parties, and while in such possession, under the contract of purchase and by the consent of the defendant, he cut, peeled and piled up the bark in question upon the land he had purchased; and the question'is, was the bark his, or was it the defendant’s ?

A parol contract for the sale of lands is not void by the statute, but the statute simply declares that no action shall be maintained on such a contract.

But if it has been in part executed, in equity it is taken out of the statute, and its performance may be enforced in a court of equity.

In this case, Comings, having gone into possession under his contract, and having deposited the fifty dollars with the town clerk, and also his notes and mortgage to secure the balance of the purchase money, accoz’ding to the terms of the agreement, had the right to compel a conveyance from the defendant in a court of equity.

When Comings cut down the trees and peeled the bark he was the equitable owner of the land, and cut the timber in his own right, and was guilty of no trespass against the defendant.

When the bark was severed from the freehold it became personalty, and it being rightfully severed the legal title to the bark would vest in Comings, although he was only seized of the fee of the lands in equity ; Yale v. Seely 12 Vt. 221.

No question is raised in argument but what the attachment and sale of the bark under the execution against Comings was regular, so as to vest the property in Pike, the intestate; provided Comings was the owner of it at the time of the attachment and sale, and we are not aware that any could be raised.

Judgment reversed, and cause remanded.