6 A.2d 84 | Pa. | 1939
A. J. Detwiler, the owner of 5,700 acres of land, sold to appellant, W. H. Pearson, in May, 1930, by written contract, the timber on 1,300 acres of land, Pearson to have twenty years to cut and remove it. The land was then subject to the lien of a judgment revived in 1927. In January, 1931, an amicable sci. fa. to revive the judgment was filed, but appellant did not sign the revival nor was he served. O. S. Havens, appellee, became assignee of the judgment and, May 12, 1931, issued a fi. fa. on it and the sheriff sold the property to him. Pursuant to his contract, Pearson continued to cut the timber, and Havens brought this bill for an injunction, which the court below granted.
There can be no question that the lien of this judgment fastened on the timber, and, by the revival in 1927, was in effect when the contract was executed. Appellant contends, however, that the sale converted the timber into personalty so that it was withdrawn from the lien and did not pass as real estate at the sheriff's sale. He argues that if this was not the effect of the contract, he was a terre-tenant and the lien to be continued must be revived against him.
Ordinarily a contract for the sale of standing timber to be cut and removed, indefinite as to the time for cutting and removal, or one that gives the purchaser discretion as to the time of removal, is a sale of land within the meaning of the Statute of Frauds: Yeakle v. Jacob et al.,
This disposes of appellant's second contention. Since he claims no interest in the real estate of the judgment debtor, he is not a terre-tenant and was not entitled to service on the revival of the lien in 1931. A terre-tenant is one who became the owner of an interest in the real estate after the lien attached. See Dengler v. Kiehner,
It might be added that when the property was sold on execution, the revived lien of 1927 still had part of a year to run and did not exist solely by the revival of 1931. No injustice resulted from failure to serve appellant; he had notice of the judgment and execution, as well as of the time and place of the sale, at which he appeared to assert his claim to the timber.
This Court has not definitely passed upon the first question raised by appellant. Assuming that the contract was a sale of personalty, what was its effect upon the lien of the judgment on the land, which then included the timber? Appellant insists that instantly there was a complete severance. He says that since Detwiler, the judgment-debtor and owner, had a right to sell and cut the standing timber, free of the lien, the effect of this contract was to sever the trees from the realty and convert them into personalty even though all *575
or part remained standing on the land. As between vendor and vendee this conclusion may be correct. Vendee acquired title to such trees as he cut and removed, as chattels, but, as to the judgment-creditor, the agreement did not create the fiction of an immediate severance and conversion of all timber within the 1,300 acres. The standing timber was part of the freehold under the judgment, and though sold as personalty, it continued to be realty as to the judgment.3 Saltonstall et al. v. Little,
The vendor could not, at his election, with the aid of a legal fiction, destroy the rights of the lien or remove the standing timber from the effect of the lien. As Justice SHARSWOOD said in Foster's Appeal,
When the contract was made, the standing timber was subject to the lien, and the lien-creditor had the right to prevent such cutting and removal of it as would impair his security. His rights were similar to those of a mortgagee out of possession. See Angier v. Agnew,
After the sheriff's sale, however, title to the standing timber passed to appellee Havens. The execution having been upon a judgment entered prior to the creation of the license to enter and cut the timber, appellee, as purchaser at the sheriff's sale, could elect to terminate appellant's rights. See Duff v. Wilson,
Decree affirmed.