Cooper v. Stower

| N.Y. Sup. Ct. | Oct 15, 1812

Per Curiam.

A contract to sell and convey land, upon the performance of certain acts, thereafter to be performed, does not, of itself, contain a license to enter,. and especially a license to enter and commit waste, by destroying the timber. Such an in-' ference would be very unreasonable. Upon that supposition, a contract to sell a house and lot, with valuable buildings thereon, would authorize the party to enter, before the happening of the contingency, and pull down the buildings. This very point was decided in the case of Sufferns v. Townsend. (Ante, 35.) Nor does the covenant from one of the defendants to the plaintiff, executed at the time of the contract, that until the execution of the contract and bond by the defendants, “ no timber should be cut upon the lot,” contain a license on the part of the plaintiff to the defendants, to commit waste. There were other covenants and provisions in that instrument sufficient to induce the plaintiff to accept of it; and it is not consistent with the due security of real property, and .the essential interests of individuals, that so erroneous a license, as the one contended for by the defendants,, should be inferred and supported from the mere fact of the acceptance by the plaintiff of an instrument containing a covenant not to cut timber, until the happening of such an event. To pass a greater interest in land than one to be held at will, the writing creating it must be signed by the party creating the same This is the language of the statute of frauds. The utmost that could he implied~ from the contract executed by the ~lainfiff and from the contract accepted by him is, that the de~ fendants were at liberty to enter, in the mean time, as tenants at will, and to occupy the land in a reasonable manner as other te~ uants at will might do~ Cutting down the timber, beyond what was requisite for the use and improvement of the farm, was ~vaste~ and a determination of the tenancy at wilL By withhoki~ tug a deed, until the payme~it of the money, the plaintiff meant to hold the land as a security for the debt; and it would cease to be a security, if the defendants might lawfully, under the contract~ render the land useless and of no value, by stripping it of all it~ timber. The confracts in the case must be construed reasonab~ and consistently with the rights of both parties~

The p1aint~tF is~ accordhiglIy~, en~ifled to ju~Ig~enL

Judgment fo~ the p1ainfl~