
    Cooper against Stower, impleaded with others.
    NEW YORK
    Oct. 1812.
    A contract to sell and convey land, upon the performanee of to be performed by the purchaser at redoes not tarn a license to enter destroying the timber; nor does an agreement several ur" until all ef ecuted^the*” p“ehMe, and erby bond formanee ^of number on^the^ioT” imly a ££¡¿§(2 ^ fcflO purchasers, afmet and bond fe yaste? by cutrying "away The ™obstthai 0jn,be contract and a°penui"siou gur^to'enter" mean nani’ at, win, the lamMu’® ^““““bie manner as tenants at will might lawfuljy go
    THIS was an action of trespass, for cutting and carrying away umber from the piaintiff’s land. The plaintiff’s declaration contained four counts. The defendant pleaded, 1. Not guilty; % Liberum tenement-urn, with a notice of special matter to be given in «,, . ,, , . , evidence at the trial.
    The cause was tried before Mr. Justice Yates, at the last circuit in Clinton county.
    , 0 The plaintiff proved that the defendant, m the years 1810 and 1811, cut from the lot of land in question, 500 spars, worth 2 do!lars each, and 30,000 feet of square timber, worth from 20 to 25 dollars per thousand, being the estimated value of the timber while 1 Standing. .
    The title of the plaintiff to lot No. 7. which included the land on which the timber was cut, was admitted. The witnesses stated that the land was of little or no value, without the timber.
    The defendants gave in evidence, a written agreement between the plaintiff and defendants, Thomas Slower, Jonathan Lynde, and A* Bonney, dated in December, 1809, by which the plaintiff covenanted and agreed to sell to the said defendants lot No. 7. in the town of Pern, in the county of Clinton, for the sum of 1,2?5 dollars, payable in four equal payments, the first to be made on the 1st March, 1810, the second on the 1st October, 1810, the third * ' on the 1st October, 1811, and the fourth on the 1st October, 1812, the three last payments bearing interest; that if the defendants should pay the plaintiff 1,275 dollars, in the manner mentioned, with interest, and also all taxes, charges and assessments on the land, then,'and in that case, the plaintiff covenanted and agreed to convey to the defendants the said lot.
    The defendants also gave in evidence, an agreement executed by blower alone, dated in December, 1809, by which he achnowledged to have received from the plaintiff a contract exeeuted by the plaintiff, and the counterpart thereof, (stating the substance of the contract,) and also a bond, conditioned for the payment of the said sums, to be executed by himself and the said Lynde and Bonney to the plaintiff; the counterpart of the contract and the bond, as soon as they should be executed by the said, Lynde, Bonney, and himself, the defendant, Slower, promised tó return to the plaintiff; and that the same should be executed as goon as 3efendant returned to Essex county. The defendant further promised and agreed, that until the said contracts and said bond were executed by himself and Lynde and Bonney, no timber should be cut on the said lot, by or under the authority or direction of them.
    The contract and bond were executed by the defendants, Lynde and Bonney, according to the agreement of Stower, and Were returned to the plaintiff by the next mail.
    It did not appear that any part of the purchase-money had ever been paid. ,
    The defendants rested their defence, on the ground that a license to enter was to be inferred from the contract.
    A verdict was taken for the plaintiff for 1,600 dollars, by consent, subject to the opinion of the court on a case containing the facts above stated.
    The case was submitted to the court without argument
   Per Curiam.

A contract to sell and convey land, upon the performance of certain acts, thereafter to be performed, does not, of itself, contain a license to enter,. and especially a license to enter and commit waste, by destroying the timber. Such an in-' ference would be very unreasonable. Upon that supposition, a contract to sell a house and lot, with valuable buildings thereon, would authorize the party to enter, before the happening of the contingency, and pull down the buildings. This very point was decided in the case of Sufferns v. Townsend. (Ante, 35.) Nor does the covenant from one of the defendants to the plaintiff, executed at the time of the contract, that until the execution of the contract and bond by the defendants, “ no timber should be cut upon the lot,” contain a license on the part of the plaintiff to the defendants, to commit waste. There were other covenants and provisions in that instrument sufficient to induce the plaintiff to accept of it; and it is not consistent with the due security of real property, and .the essential interests of individuals, that so erroneous a license, as the one contended for by the defendants,, should be inferred and supported from the mere fact of the acceptance by the plaintiff of an instrument containing a covenant not to cut timber, until the happening of such an event. To pass a greater interest in land than one to be held at will, the writing creating it must be signed by the party creating the same This is the language of the statute of frauds. The utmost that could he implied~ from the contract executed by the ~lainfiff and from the contract accepted by him is, that the de~ fendants were at liberty to enter, in the mean time, as tenants at will, and to occupy the land in a reasonable manner as other te~ uants at will might do~ Cutting down the timber, beyond what was requisite for the use and improvement of the farm, was ~vaste~ and a determination of the tenancy at wilL By withhoki~ tug a deed, until the payme~it of the money, the plaintiff meant to hold the land as a security for the debt; and it would cease to be a security, if the defendants might lawfully, under the contract~ render the land useless and of no value, by stripping it of all it~ timber. The confracts in the case must be construed reasonab~ and consistently with the rights of both parties~

The p1aint~tF is~ accordhiglIy~, en~ifled to ju~Ig~enL

Judgment fo~ the p1ainfl~  