39 How. Pr. 377 | N.Y. Sup. Ct. | 1869
This action was brought to recover the value of a quantity of pine timber cut by the defendant, which the plaintiff claims to own. It was tried before a referee, who found in favor of the plaintiff, and ordered judgment for $60, damages, besides costs; from which judgment the defendant'appeals.
The facts, so far as material, in the view I take of the casé, are as follows: The plaintiff claims the timber in. question by virtue of a sale of the same to him and Peter
The defense rests upon an alleged title in the defendant’s wife to the locus in quo, under whom the defendant acted in cutting- and taking off the timber in question. Such title is made as follows: On the 3d day of Januazy, 1837, the said Beames gave a quit-claim deed of seventy-one acres, comprising the premises on which the timber was cut, to E. It. Ford. On the 4th of Apzil, 1864, Ford and wife conveyed the same to B. C., Hodge, and on the 1st of Apz*il, 1867, Hodge conveyed to the defendant’s wife. Under these conveyances she claims the leasehold estate in the premises.
On the 1st of May, 1865, G. S. Banyer (who had sue
Hone of these deeds or instruments appear, from the evidence or findings, to have been recorded, except as follows, viz: the deed of 3d of January, 1837, from Beames to Ford, on the 16th of January, 1837; the deed of 4th April, 1864, from Ford and Hodge, on the 11th of June, 1864; the deed of 1st April, 1867, from Hodge to the defendant’s wife, in February, 1868; the deed of 1st May, 1865, from G. S. Banyer to John and Dewitt Beames, on the 3d of July, 1866; and the deed of 11th March, 1866, from John and Dewitt Beames to the defendant’s wife, on 9th of April, 1866.
The referee finds that Ford, when he took said deed, to him, knew that Collier & Goodyear claimed to have bought the timber on said piece of land, on which the same was cut by the defendant.
The question of Beames’ right, as lessee, to sell the timber in question, is disposed of by the fact found by the referee, that his lessor had recognized, and in effect ratified, the sale, so far as his interests were concerned.
The leading'question in the case, as here presented, is, whether the interest in the wood and timber purchased by Collier & Goodyear, under the instrument in writing dated February 13, 1833, was such an interest in land as constituted a freehold estate, or not. The learned referee held that it was not, and therefore that the conveyance
It is well settled, in this State, that standing trees form part of the land, and as such are real property. (Green v. Armstrong, 1 Denio, 550. McGregor v. Brown, 6 Seld. 117. The Bank of Lansingburgh v. Crary, 1 Barb. 542. Vorebeck v. Roe, 50 id. 302. Warren v. Leland, 2 id. 613.) An owner in fee of the land has the same estate in the trees
How, although, in the case at bar, the grantor of the trees had but an estate for lives in the land, his conveyance of the trees purported to convey the entire interest in them, with the right of their indefinite continuance on the land. If he had the power to make such a conveyance—which is not here questioned—the question now is, did he, by the instrument which he executed, make a conveyance which became operative, as against Ford, prior to his conveyance to him, as above stated ?
The statute provides thatevery grant in fee of a freehold estate shall be subscribed and sealed by the person from whom the estate or interest conveyed is intended to pass, or his lawful agent; if not duly acknowledged previous to its delivery, * * its execution and delivery shall be attested by at least one witness; or, if not so attested, it shall not taJce effect as against a purchaser or incumbrancer, until so acknowledged.” (1 R. S. 738, § 137.)
There can be no doubt, I think, that the interest or estate which the instrument of sale purported to grant, in the trees, was at least a freehold estate. The entire interest in this portion of the land was, by the terms of the deed, granted. If, instead of the trees, it had been the soil so granted, there would be no doubt that it would have been a grant of at least a freehold estate. The subject matter of the grant being the trees, confessedly a part of the land, I cannot see how -the estate granted, in this part of the land, is less- than if it were the soil.
Even if, by a legal fiction, the grant operates to effect a severance of the trees from the soil, so as to render them henceforth personal property, still the estate which passed from the grantor is no less a freehold estate than if no such effect was produced; and no writing less than a deed legally executed is sufficient to divest the grantor of such
The result then is, that the conveyance of the trees to Collier & Goodyear did not take effect, as against Ford and his grantees, until January 1, 1867, when it was acknowledged by Beames. Prior to that time, Beames’ interest in the premises, through his conveyance to Ford and the subsequent mesne conveyances, had vested in the defendant’s wife. So that the failure of the conveyance to “take effect,” as against these purchasers, until after their titles had accrued, left the plaintiff with no title, as against the defendant.
This view of the effect of the instrument of sale to Collier & Goodyear disposes of the case, and shows that judgment should have been given for the defendant.
The judgment appealed from must be reversed, and a new trial granted; costs to abide the event.
Falcom, Foaa-énan and Farlcer, Justices.]