Fairbanks v. Stowe
74 A. 1006
Vt.
1910
Check Treatment
Rowell, C. J.

The sale and conveyance of the trees to Darling, Clark, and Hubbard by the defendant, evidenced by his deed to them of October 2, 1905, worked in law a severance thereof from the freehold, converted them into personal property, and vested the title thereto in the grantees as such property, for that was manifestly the intention of the parties. Therefore the grantees could sell and convey them orally or otherwise, the same as they could any other personal property, and the defendant could acquire title thereto as he offered to show he did, and that title would authorize him to go upon the land and cut and remove them within the time limited, for the plaintiff took his title subject thereto, as the lumber right of Darling, Clark, and Hubbard was excepted in his deed, and their lease was on record. Nor could they defeat the defendant’s right *159and title in this behalf by assigning the lease to the plaintiff, nor by discharging it, as they directed'the town clerk to do. This being so, it is unnecessary to consider any of the objections to the admission of the assignment.

Sterling v. Baldwin, 42 Vt. 306, is full authority for this holding. That was trespass for cutting trees. One Adams sold and conveyed the land to the plaintiff by deed duly executed and recorded, reserving therein to himself all the hemlock timber standing on a certain part thereof, with the right to cut and remove the same at any time within two years. Afterwards Adams sold the trees to Quimby, and evidenced it by a writing neither sealed, witnessed, nor acknowledged. After that, Adams quitclaimed to the plaintiff by a deed duly signed, sealed, witnessed, and acknowledged, all the rights and timber reserved to him in his first deed to the plaintiff. The Court said that by that reservation the parties virtually treated the trees as personal property, in no way so partaking of the nature of realty as to require a deed as between them to transfer the title thereto from Adams to the plaintiff nor from Adams to any one else; that therefore the deed subsequently made by Adams to the plaintiff, purporting to cover and convey only the same property, could be of no greater efficacy than such a writing as Adams gave to Quimby would have been if it had been given to the plaintiff instead of said deed. The Court held that Quimby got good title to the trees by his purchase of Adams, evidenced by said writing, and that his title was in no way defeated by the deed of Adams to the plaintiff subsequently obtained. The Court expressly says that the ease does not at all bring into consideration the rights of bona-fide purchasers who take title by deeds duly executed, acknowledged, and recorded, and who are not affected by the record or in some other equivalent way with the knowledge or effect of such a sale of growing trees standing upon the land covered by such deeds as was made by. Adams to Quimby, because the plaintiff was party to the virtual severance of the trees by the operation of his first deed with its reservation, which made the trees susceptible of valid sale by Adams without deed; that therefore he could not be misled by the record, and if he would make himself certain whether he could get a good title to them by a subsequent purchase from Adams, it behooved him to keep track of the ownership by other means than the land records *160of the town. But this ease is stronger than that, for the defendant offered to show that before and at the time the plaintiff got his assignment from Darling, Clark, and Hubbard, he was told and knew that the defendant had already bought their right and interest.

It follows, therefore, that the court was wrong in excluding the defendant’s offer on the ground it did. But the plaintiff says that though the ground was wrong the exclusion was right, because the defendant should have specially pleaded the things he offered to show, and could not show them under the general issue. This claim was not made below, but is properly made here as a ground for sustaining the ruling, for if there is any ground on which it can be sustained it will be; and there is, for the plaintiff is right in his claim, the rule being that when, as here, the act complained of is prima facie a trespass, and the allegations of fact in the declaration can not be denied, any matter of justification or excuse must, in general, be specially pleaded. 1 Chit. Pl. [#501] ; LeCaux v. Eden, Dougl. 594, 611; Milman v. Dolwell, 2 Camp. 378; Knapp v. Salsbury, Ib. 500; Rawson v. Morse, 4 Pick. 127. And see Hill v. Morey, 26 Vt. 178; Saivyer v. Newland, 9 Vt. 383, 393.

Judgment affirmed.