
    NATURE OF A SALE OF STANDING TIMBER.
    Common Pleas Court of Montgomery County.
    The Dayton Handle & Golf Co. v. Charles L. Gebhart.
    
    Decided, March 3, 1926.
    
      Contract for Sale of Trees — Verbal Extension of Time for Their Removal Treated as a License — ■And not within the Statute of Frauds.
    
    Under an agreement for sale of the timber standing on certain specified land, said timber to be cut and removed within a specified time, which was afterward extended by a written and still later by a verbal agreement and then attempted to be revoked, a case is presented of an agreement, invalid under the statute of frauds but good as a license to enter .upon the land and cut and remove the trees, and injunction lies against prevention of this being done by the owner of the land.
    
      
       Affirmed by the Court of Appeals.
    
   SNEDIKER, J.

The plaintiff sues to restrain the defendant from disposing of certain ash and hickory timber growing on his farm in Jefferson township this county, from disposing of his land without reserving the rights of the plaintiff in the timber, from cutting the timber, and from interfering with the plaintiff in cutting and removing it.

The case came on for hearing and at the close of the plaintiff’s evidence a motion was interposed by the defendant on the theory that the plaintiff had not made a case. Originally a contract in writing was entered into between the plaintiff and the defendant by which in consideration of the sum of $1,500 the defendant sold and transferred to the plaintiff all ash and hickory timber at that time standing on his land known as Parcels C and D of the estate of Hiram Gebhart and'located in Jefferson' township, Montgomery county, Ohio; and in consideration of $1,000 that day paid by the plaintiff to the. defendant, the defendant sold and transferred to the plaintiff, all white, red and burr oak timber now standing on the 42 acre tract of timber on Charles L. Gebhert’s farm, located as above described. The understanding was that only timber ten inches and up should be cut. A stipulation of this contract was:

“That it is further agreed between the parties hereto that The Dayton Handle & Golf Company'can cut and haul the above mentioned timber at such times as may be suitable to its convenience, provided that said timber be completely removed by August 1, 1923.”

This agreement was property signed by the respective parties and witnessed by R. H. Crandall and Russell Gebhart.

The Dayton Handle & Golf Co. having failed to remove all of the timber within the specified time and finding that it required an extension thereof, secured from the defendant and entered into this agreement with him:

“Dayton, Ohio, June 26, 1923.
As an amendment to the above contract it is further provided hereby that an extension of time for the removing of the timber as above described until August 1, 1925.
In witness whereof, the parties to this agreement have set their hands this 26th day of June, 1923.
The Dayton Handle & Golf Co.,
Wm. Klingensmith, Timber Buyer.”
Chas. L. Gebhart.

•Even with this extension the timber was not removed within the time specified therein and certain conversations were had with the defendant by which it was claimed on the part of the plaintiff that there was an extension of the time verbally. Letters written by the plaintiff on June 11, 1925, and on June 18,1925, which had reference to the possibility of Mr. Gebhart selling his farm and also were intended to draw from him an answer in writing recognizing the verbal agreement, received no response. However, the plaintiff, through its employees, entered upon the farm of the defendant on' September 24, 25, and 26, 1925, and then by other employees on September 30, October 1, 5, 6 and 7, and cut and removed some of the timber. In going in and coming out they could have been and no doubt were observed by the persons at the home of the defendant. In fact the testimony shows that he went out and talked to them during the time they were cutting down the trees and undertook to make a deal with them with respect to a tree, not on the ground referred to in the agreement made by him with the plaintiff.

After all this had occurred and before the timber had all been removed, Gebhart refused to permit any further cutting and hauling on the part of the plaintiff, or its employees, and informed them that the privilege was revoked by him. Thereupon this suit was brought.

The question presented by the motion made is one of law. There can be no doubt in the mind of any of counsel with respect to the attitude of the Supreme Court of Ohio as to the nature of a contract for the sale of standing timber. This is fully stated and discussed by Judge Bradbury in the case of Hirth v. Graham, 50 O. S., page 57. The syllabus is in accord with the opinion which reads as follows:

“A sale of standing timber, whether or not the parties contemplate its immediate severance and removal by the vendee, is a contract concerning an interest in lands, within the meaning of the statute of frauds, and is voidable by either party if not in writing.”

The authorities are not in accord as to the nature of such a contract but the opinion of the Supreme Court is supported amply. Our examination discloses that many of the courts of last resort and not referred to in the Graham opinion are in accord.

The Supreme Court of Ohio having so definitely decided the point, it is unnecessary for us to discuss or elaborate. After this decision, the case of Clark v. Guest, 54 O. S., page 298, following the opinion in the Graham case as to the principle enunciated, passed upon another situation which also bears upon the case at bar. The syllabus reads:

“Where a man purchased a farm, and agreed in writing that the vendor should have all the timber suitable for lumber, except the hard maple, to be cut. and taken off before the first day of April, 1891; Held, that this was a sale of only so much of the timber as the vendor of the farm should take off within the time limited; that the timber not taken off within the limited time, adhered in the land and lapsed into the fee, freed from the contract of sale; that, until taken off, the title and possession of the timber remained in the owner of the farm; that a verbal extension of the time within which to take off such timber is within the statute of frauds, and to be valid must be in writing; and that such verbal extension of time, réliance thereon, and consequent delay in taking off such timber, is not such fraud as will take the case out of the statute of frauds.”

The facts in this case were different from the facts in our case. They are stated to be:

“After the first of April, 1891, and before the first of April, 1892, Mr. Guest entered upon the premises, cut and took away part of the trees without the knowledge of Mr. Clark, and while he was cutting other of the trees, Mr. Clark learned the fact and immediately positively forbade his cubing any more trees, and prevented his so doing, on the ground that the time limited in said written instrument for taking away the timber had expired, and he denied making an extension of time.”

We now call attention to the fact that in closing its opinion in the Graham case the Supreme Court say:

“Whether certain circumstances of part performance might require a modification of this rule,” (the rule already quoted in the syllabus), “is not before the court and has not been considered.”

Nor is there an expression on this point in the Guest case. Nor do we find it necessary to determine that question in the instant case.

Warvelle in his work on Vendors at Section 162, in discussing contracts with respect to standing trees says:

“It will be seen, therefore, that, notwithstanding a parol sale of timber may be void as a sale of an interest in land, it may nevertheless still be permitted to operate as a license to enter, cut and carry away the trees; and, if executed by cutting, the timber will be converted into personalty and the title thereto will vest in the person acting under the license, he having complied with all the conditions under which the same was granted.

In his first volume on Real Property, Washburn at page 14 says:

“Trees growing upon land constitute a portion of the realty, and pass by a mortgage of the land, and the mortgagee could not otherwise sell them to another, than the land itself. So they can not be levied on, on a fi fa, or personal property execution. * * *
“Many cases have seemed to treat a sale of growing trees as if they were chattels, and as being effectual to pass a property in them before they are cut, although not evidenced by a deed. But it is apprehended that this doctrine, which, at first thought, would seem to be incompatible with the Statute of Frauds, may be reconciled by treating such sale, if by parol, as a license rather than a grant of an interest in real estate, and which, though liable to be revoked, if executed carries the property in such of the trees as shall have been severed from the freehold. Such a parol sale of trees, till actually perfected by a severance of them from the freehold, is, moreover, to be deemed as executory, and may be defeated by a conveyance of the freehold.”

In the case of Jenkins, Appellant, v. Lykes and others, Appellees, 19 Fla., page 148, the court holds:

“A parol sale of standing trees though void as a sale of an interest in land operates as a license to enter and cut the trees, and until revoked such license will estop the seller from suing in trespass or trover.”
“Although a parol agreement to sell timber is invalid as a contract it is good as a license, and timber cut before a revocation thereof becomes the property of the licensee.” Antrim Iron Co. v. Anderson, 140 Mich., p. 702.

If the parol extension allowed by this defendant may be regarded as a license to enter the land for the purpose of cutting and carrying away the timber to which it referred, was it right subsequently to revoke that license, as he undertook to do ? Warvelle again says, in Section 23 of his work:

“The better doctrine would seem to be that when the licensee has made valuable improvements or expended money in consequence of the extension of the privilege it then becomes irrevocable so far as such revocation may injuriously affect him, and usually courts of equity will not permit the revocation of a license when it has been given to influence the conduct of another and has caused him to make large investments.”

In the case of Williams v. Flood et al, 63 Mich., page 487, the Supreme Court discussed a case on all fours with the case we are considering, and held:—

“Where the purchaser of standing timber paid in full for the same, and received a written contract, signed by the owner of the land, in which he sold and conveyed said timber to the vendee, with the undisputed right of removal for two years from its date, and the purchaser removed a portion of the timber, and before the expiration of the two years obtained from his vendor a verbal extension of one year in which to remove the balance, which time was again extended by a like agreement, before the expiration of the first extension, for another year, — Held, that the parol agreement was more than a revocable license, and prevented the enforcement of the forfeiture so long as it lasted, as it was entirely inconsistent with it; and that during its term the owner of the land would be estopped from preventing the vendee from entering on the land and removing the timber.”

The contract in that case read as follows:

“The party of the first part for and in consideration of the sum of five hundred dollars, to me in hand paid by Henry W. Williams, the receipt whereof is hereby acknowledged, do, by these presents, sell, sign and convey to the said Henry W. Williams all the standing timber,” etc.

Our contract reads:

“That the said Chas L. Gebhart, in consideration of the sum of fifteen hundred dollars cash this day paid him by The Dayton Handle & Golf Co., receipt of which is hereby acknowledged, hereby sells and transfers to The Dayton Handle & Golf Company all ash and hickory timber now standing on land known as parcels C & D of the estate of Hiram Gebhart,” etc., and “That the said Charles L. Gebhart, in consideration of the sum of one thousand dollars cash this day paid him by the Dayton Handle & Golf Co., receipt of which is hereby acknowledged, hereby sells and transfers to The Dayton Handle & Golf Co., all White, Red, and Burr Oak Timber now standing on the 42 acre tract of timber,” etc.

In discussing the contract in the Williams case, which is identical in its effect with our contract the Supreme Court of Michigan say:

“These words express the intention to sell and convey the standing timber as timber attached to and a part of the freehold, by which a present title was to pass, and can not be construed into an executory agreement to sell and convey the timber when it should be thereafter severed. The agreement conveyed an interest in the land, and was such as the statute of frauds required to be in writing to be valid. Russell v. Myers, 32 Mich. 522; Wetmore v. Neuberger, 44 Id. 362; Spalding v. Archibald, 52 Id., 365; Putney v. Day, 6 N. H., 430; Owens v Lewis, 46 Ind. 488; Daniels v. Bailey, 43 Wis., 566; Slocum v. Seymour, 36 N. J. Law, 138.
“When conveyed, it was an interest in lands, and did not cease to be such thereafter until severance.
“If the limitation as to time of removal should be construed as a covenant on the part of the purchaser that he would remove the timber in the time specified, the title to the timber would remain in the purchaser after the time limited had expired, and he could still enter upon the premises, and remove the same at his pleasure, being liable to the vendor for such damages as he should cause in so doing.”

The nature of the contract in our case distinguishes it from the Guest case and entitles it to the construction placed upon such a contract by the Supreme Court of Michigan in the Williams case.

One of the claims of the plaintiff in this ease is that:

“Plaintiff says that said timber is of a size and character especially required by plaintiff in its business and its contracts have been made in reliance upon the use of same. Plaintiff says that the conduct of the defendant as aforesaid is a fraud upon it.”

Under all these circumstances, the case is similar to one of part performance of a parol agreement for sale of an interest in real estate and it would be positive inequity to permit the defendant to revoke the license to cut so given by him orally.

The motion of the defendant, therefore, is overruled.  