49 N.H. 204 | N.H. | 1870
It has been recently decided in this state, upon careful consideration of the conflicting decisions, both in England and the United States, that an agreement for the sale of growing trees, with a right at any future time, whether fixed or indefinite, to enter upon the land and remove them, does convey an interest in the land, and is within the statute of frauds; and therefore must be in writing, Kingsley v. Holbrook, 45 N. H. 313.
This decision went upon the ground that standing trees are part and parcel of the land, and go to the heir, while growing crops as wheat and corn, the annual produce of labour and cultivation of the earth, fruclus industriales, and tobe considered as goods and chattels, and go to the executor.
This distinction is at least tolerably explicit and tangible, and avoids many perplexing refinements with which this branch of the law has been burdened, and although it was not strictly necessary, perhaps to settle the question in that case, yet the careful consideration bestowed upon it gives it, we think, the character of a binding authority. The authorities cited, including Putneg v. Day, 6 N. H. 430; and Olmstead v. Niles, 7 N. H. 522; from our own descisions, will sustain the doctrine announced.
To these, might be added, Crosby v. Wordsworth, 6 East. 602, which was the sale of a growing crop of grass held to be within the statute, Evans v. Roberts, 5 B. & C. 829, where the distinction between the natural and permanent products of the land, such as grass and trees; and those which come under the discription of emblements, and go to the executor, is fully recognized.
In Rodwell v. Phillips, 9 M. & W. 501, it was held that a sale of fruit, growing on the trees, is an agreement for the sale of an interest in land, and requires a stamp, although no time was fixed for taking. So this distinction is recognized in Jones v. Flint, 10 A. & E. 573 ; and see Hutchins v. King, 1 Wallace U. S. 53.
Upon the authority of Kingsley v. Holbrook, we consider it settled here, that the sale of growing trees, with the light to cut and remove them ata future time, whether the time be fixed or indefinite, is a sale of an interest in land and must be in writing.
Here, as no time is fixed, but it is merely a sale of the trees, the right to enter and take them in a reasonable time, must be regarded as an incident of the sale, Gilmore v. Wilbur, 12 Pick. 120.
The defendant has set up a right in Stephen Batchelder to enter upon this land, and take away the timber by virtue of a license from the plaintiff, implied from a sale of the trees, and that the defendahts entered under him as his servants. But the proof offered was of a sale by Stephen Batchelder, of these trees to the defendants,
The evidence offered then, fails to sustain the defence set out in the brief statement, and besides the license if available to Stephen Batchelder, being founded in personal confidence, was not assignable, Carlton v. Reddington, 21 N. H. 291, 305 ; Cowles v. Kidder & al., 24 N. H. 379, and cases cited, Houston v. Laffel, 46 N. H. 505.
The evidence that plaintiff had received pay of Stephen Batchelder for all the trees, was, we think, rightly rejected. Upon the revocation by the plaintiff, of the license to take the trees, Stephen Batch-elder might find some remedy, either at law or in equity, but we think the defendants cannot, in this form enforce it. The money was paid by Stephen Batchelder. He has received part of the timber, and sold the rest to the defendants. Whether the remedy be by recovering back the money paid, or by bill in equity to enforce a specific performance, it would seem that it must be in the name of Stephen Batchelder. At any rate we know of no authority for receiving this evidence in mitigation of damages, and none has been cited.
Judgment on the verdict.
