delivered the opinion of the court.
The question is, whether a verbal license, given by Arnos Putney to the defendants, in December, 1828, could avail them as a defence under the circumstances of this case. If it could, the verdict must be set aside and the evidence admitted. If it could not, the verdict is rights and the plaintiffs entitled to judgment.
The contract to sell the trees, in this case, was within the statute of frauds, and it was essential that it should be in writing, 1 Laws, 535; 2 Starkie’s Ev. 598; 6 East, 602; 2 B. & P. 452; 2 Taunton, 38; 7 Johns. 205.
Under certain circumstances, a sale of a growing crop, or of timber, is not within the statute. 9 B. & C. 561; 5 ditto, 829, 11 East, 362; 2 M. & S. 204. But in this case the contract was clearly within the statute.
In Peace v. Gibson, 6 Greenleaf, 81, a sale of all the timber trees standing on a lot of land, the purchaser to have two years to take the timber, was held to be a sale only of the timber taken within the two years. And this decision seems to us to be reasonable. For otherwise, the purchaser might keep the timber encumbering the land as long as he pleased.
The license then given by Arnos Putney, in December, 1828, was without any consideration to sustain it.
A license, which, in its nature, amounts to a grant of an interest in land must be in writing. 11 Mass. Rep. 533. But a parol license executed cannot be revoked. 8 East, 308. 4 Pickering, 368; 7 Bingham, 682.
And a parol license to be exercised upon land and granted upon a good consideration is valid, and cannot be revoked. 7 Taunton, 374.
It is clear, then, that the evidence offered by the defendants was rightly rejected, and there must be
Judgment on the verdict.