
    Nathaniel B. Haskell and another v. Frederick S. Ayres and others.
    
      Sate of standing timber: Title to the land. A sale of standing timber with, leave to remove the same within three years will not be held void db imtio at the instance of one claiming through the vendor, because made before such vendor acquired title to the land, he having acquired title before the three years expired.
    
    
      Sale of standing timber: Time of removal: Parol extensions: Statute of frauds. jparol extensions of time to remove growing timber under a contract for the sale and removal thereof, whether valid under the statute of frauds, or not, when made, are good as licenses, so far as they are acted upon.
    
    
      
      Sales: Merchantable timber: Title: Present transfer. A sale of all the merchantable timber on specified lands transfers the title at once, and tbe only matter left open as to-any particular timber on the lands specified, isa question of fact, whether such timber is or is not merchantable.
    
    
      Sale of standing timber: Subsequent conveyance of the land: Extensions of time of removal. Where one who has sold the standing timber to be removed within three years, after-wards conveys the land reserving such timber absolutely, such reservation will not be held to have "been made for the purpose only of protecting his contract, so as to deprive him of all authority to extend the time for taking off the timber; but tbe right thus to extend the time could not last indefinitely to the prejudice of an owner desiring to put the land to use, and who made known his objections.
    
    
      Heard October 6,
    
    
      Decided October 24.
    
    Error to Huron Circuit.
    This was trover for certain timber which tbe plaintiffs, Ayres and others, bad purchased as standing timber of one Kingsley, and which defendants, Haskell and another, had purchased of one who had cut and sold it under an arrangement with Kingsley’s vendee of the land. Kingsley’s sale of the timber was with the privilege of removal within three years, hut this timber was cut by defendant’s vendor long after the expiration of the three years. After the sale of the standing timber, Kingsley conveyed the land, reserving the timber; and plaintiffs claimed that Kingsley had extended the time by parol from time to time for taking off the timber. The judgment below was for plaintiffs, and defendants bring error.
    * G. 8. Engle and 3oyt Post, for plaintiffs in error.
    
      Richard Winsor and 3. R. Carpenter, for defendants in error.
    
      
       A grantor who subsequently to his grant acquires title is estopped to deny title in his grantee, if he “ assumes by his deed to convey title and by any form of assurance obligates himself to protect the grantee in the enjoyment of that which the deed purports to give liim.” There need not be covenants of seisin and title: Smith v. Williams, 44 Mich., 240; Sholwell v. Harrison, 22 Mich., 410.
    
    
      
       The statute of frauds does not apply to a mere license: Morrill v. Machman, 24 Miclu, 279. If parties, before revocation, execute in good iaith an oral contract for the sale of standing timber, the sale may be considered as a license for what has heen fairly and seasonably done. Although in parol, so far as carried out, such contract is valid and cannot be revoked so as to undo what has been done under it: Greeley v. Stilson, 27 Mich.. 153* Sovereign v. Ortman, 47 Mich., 181; Spalding v. Archibald, 52 Mich, and cases cited, and see Welmorc v. Heuberger,44 Mich., 362, distinguished.
    
    
      
       As to what is a completed sale, see note to McDonough v. Sutton, supra, p. 1.
    
    
      
       That an estate of inheritance may he reserved in growing timber upon the granted land, see Clap v. Draper, 4 Mass., 266; Poster v. White, 102 Mass,, 378; Howard v. Lincoln, 1& Me., 122; Knotts v. Hudrick, 12 Rich., 314; Putnam v. Tuttle, 10 Gray, 48; but the reservation must be to tbe grantor, not to a stranger to the deed; Lire Young, 11B. I., 636. As to reservation of minerals and mining rights, see Erickson v. Mich. Land, &c. Co., 50 Mich., 604*
    
   Cooley, Ch. J.: •

This case, when before us on a former occasion (32 Mich.,. 93), was disposed of on the terms of the written agreement by which Kingsley had sold standing timber to be taken off within three years, which time had elapsed before the timber now in controversy was cut. Several new facts are now in the case. It appears than when Kingsley afterwards sold the land he expressly reserved the timber, and he testifies that he extended indefinitely the time for taking the timber off. Under this state of testimony the following objections are taken to the recovery which the plaintiffs below have obtained:

1. That the original sale of the timber by Kingsley was void, because made before he acquired title to the land. But it appears that he acquired title before the three years expired; and that would be sufficient to validate his sale. He could not then dispute it, nor could any third person.

2. That his extensions of time to take off the growing timber were invalid, because not in writing, as required by the statute of frauds. But whether valid or not originally, they would be good as licenses, so far as they were acted upon, and Kingsley’s testimony is full to the fact that for all the timber cut he received payment;

3. That the agreement in itself was ineffectual to pass title to any particular timber, because the sale was not of all the timber on the land, but only of the merchantable timber, so that some action would be requisite to detei’mine what was and what was not covered by the sale. But as the sale was of all the merchantable timber, we have no doubt it took effect at once, upon such timber as answered the description. Only a question of fact would be open, as to what was and what was not merchantable.

*4. That Kingsley had no authority thus to extend the time for taking off the timber, his reservation of it by his deed being only for the purpose of protecting his contract. But his deed does not show this, and the reservation is absolute.

There must undoubtedly be some limit to the right of Kingsley thus to extend the time after he had parted with the title to the land. He could not do so indefinitely to the prejudice of an owner who might desire to put the land to use. But it does not appear by this record that the owner of the land ever objected, or ever notified the owner of the timber to remove it. On the whole, we are inclined to think no error in law was committed in the court below, and the judgment will be affirmed, with costs.

The other justices concurred.  