Turner v. Planters' Lumber Company
| Decision Date | 11 May 1908 |
| Citation | 92 Miss. 767,46 So. 399 |
| Parties | VANCE H. TURNER v. PLANTERS' LUMBER COMPANY |
| Court | Mississippi Supreme Court |
March 1908
FROM the circuit court of Washington county, HON. A. MCC. KIMBROUGH, Judge.
Turner appellant, was plaintiff in the court below; the lumber company, appellee, was defendant there. From a judgment in defendant's favor the plaintiff appealed to the supreme court. Defendant's demurrer to plaintiff's declaration was sustained by the court below on the idea that the contract sued upon was one for the sale of standing timber, real estate, and within the statute of frauds. The facts are stated in the opinion of the court.
Case reversed and remanded.
Hugh C Watson, for appellant.
While it would seem that the law is well settled in Mississippi to the effect that the sale of standing timber amounts to the conveying of such an interest in the land as necessitates the writing required by the statute of frauds, the case at bar is neither in spirit nor in effect like unto the adjudicated eases on that subject in this state. The case at bar falls within the language and holding of the two early and leading English cases on this subject. Washburn v. Burrows, 1 Wh. & G. (Exch.), 115; Smith v. Surman, 9 B. & C., 562.
In Washburn v. Burrows, Rolfe, B., for the court, said that where the vendor, who is the owner of the soil sells what is grown on the land, whether natural produce (prima vestura) such as timber, grass, herbage, or apples, or of annual produce of industry (fructus industriales) as corn, pulse, or the like, on the terms that he (the vendor) is to cut, or sever them from the land and then deliver them to the purchaser, the latter acquires thereby no interest in the soil "which in such cases is only in the nature of a warehouse for what is to him merely as a personal chattel."
In Smith v. Surman, it was held that where the owner of land agreed with another to cut timber from his own land and deliver the trees, when cut down or severed from the freehold, to the latter for stipulated prices, the statute of frauds did not apply, and the particular agreement, in that case, being considered to have that effect in law was therefore held not to be within the statute.
In the case last above cited, the facts were very much like the facts in the case at bar. The defendant verbally agreed to buy a large quantity of timber, which at the time plaintiff was having cut down, most of it being then actually standing. The price was valued per foot, and no time was fixed for payment, and the defendant was to take and carry the timber away. In the case at bar the timber was valued per thousand log measure, and the vendor was to both cut and carry away the timber and deliver it to the defendant at a designated place, to-wit: Dunleith Station. In the case at bar the vendee, the Planters' Lumber Company, had no right to enter upon the land where the timber stood and take the timber, and it was not contemplated that it was to do so; but on the other hand the vendor was to cut the timber, remove it from the land on which it was standing, and on which he had a valid timber contract, haul it to the station and deliver it on the siding. Clearly therefore there was no interest in the lands conveyed, or intended to be conveyed.
Anderson & Voller, on the same side.
We recognize that it has been the settled doctrine of this state for probably fifty years, that standing trees are a part of the land, and that to make a valid sale thereof, the contract must be in writing to meet the requirements of the statute of frauds. This doctrine was announced in the leading case in this state of Harrell v. Miller, 35 Miss. 700.
It was afterwards followed by our court in the case of McKenzie v. Shows, 70 Miss. 388, 12 So. 336, in which it was held that a deed to standing timber growing on a homestead made by the husband without the wife joining was void.
It was again followed by our court in the case of Nelson v Lawson, 71 Miss. 819, 15 So. 798, wherein it was decided that a verbal contract for the sale of growing timber, though valid as to the trees cut and paid for in execution of the contract, is void as to trees standing on the land although all the purchase money is paid.
It was again followed by our court in the case of Walton v. Lowrey, 74 Miss. 484, 21 So. 43, wherein it was decided that a parol agreement authorizing the cutting of standing timber on lands is within the statute of frauds.
It will be observed that the last of these cases was decided at the October term, 1896, of our court, more than eleven years ago, and the first was decided at the October term, 1858, about forty-nine years ago. This doctrine was formerly adhered to by the great weight of authority, but in modern times, under the changing conditions, the doctrine itself has also undergone a change, and now it seems that the weight of authority is that where the trees are sold in "the prospect of separation from the soil immediately or within a reasonable time" the sale is regarded as that of personal property, and is not required to be in writing under the statute of frauds.
We recognize that it is the policy of this state, as announced by our court in many decisions, that no exception will be allowed to be engrafted on our statute of frauds, which requires contracts for the sale of land, or of that which is a part of the land, to be in writing, in order to be valid. But even if this contract, as contended for by counsel for appellee, was for the sale of growing timber standing on and affixed to the land (which we emphatically deny), still, under the modern doctrine, to which we have just referred, the timber sold would be considered personal property, and therefore a contract for its sale need not be in writing.
In the case of Hirth v. Graham (Ohio), 19 L. R. A., 721, decided in 1893, the old doctrine that all sales of standing trees must be in writing to be valid, regardless of whether they are to be removed immediately or not, is adhered to.
To the same effect are a great number of the decisions referred to in the foot note to that case, although it will be seen by reference to this note that many of the strongest courts of the land, even at that early date, held to what we now consider the modern doctrine, that a sale of standing trees did not necessarily need to be in writing.
This modern doctrine to which we have referred is tersely stated as follows:
"When regarded as personalty.--The essential difference, however, between land and trees growing out of land, and the fact that the latter have in commercial transactions come to be regarded rather as personalty, have led the courts in many modern cases to draw a distinction; and it is now very generally recognized that a contract for the sale of trees, if the vendee is to have a right to the soil for a time, for the purpose of further growth and profit, is a contract for an interest in the land; but that where the trees are sold in the prospect of separation from the soil immediately or within a reasonable time, without any stipulation for the beneficial use of the soil, but with license to enter and take them away, it is regarded as a sale of goods only, and not within the fourth section of the statute." 28 Am. & Eng. Ency. of Law, 541 and note 8.
By reference to this note, it will be seen that a large number of the strongest courts of the land have adopted this view. As early as 1897, the Maryland Court of Appeals held that the parol sale of growing timber was not within the fourth section of the statute of frauds. Leonard v. Medford, 37 L. R. A., 449.
This view is demanded, it would seem, by the increased "commercial transactions" regarding the sale of timber that have grown up in the last ten or fifteen years.
Percy & Moody, for appellee.
Counsel in their brief rest their case practically upon the second count of the declaration, the contention being that the contract was for the sale of timber soon to be severed from the soil, and should be construed as a sale of personalty not required to be in writing by the statute of frauds. The doctrine contended for is clearly stated in 28 Am. & Eng. Ency. of Law, 541. "The essential difference, however, between land and trees growing out of land, and the fact that the latter have in commercial transactions come to be regarded rather as personalty, have led the courts in many modern cases to draw a distinction, and it is now very generally...
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