
    Erskine vs. Plummer.
    -y ñale of timber by parol, ío be eiit and carried away by the vendee, seems not to be within the statute of frauda
    This was an action of assumpsit, brought by George Erslcine, for the proceeds of certain timber sold by the defendant. The material facts, developed on the trial, which was had before the chief justice, were the following:—
    
      Levi 13. Erskine,
    
    being the owner of a lot of land in Aina, on which the timber in question grew, mortgaged the same, Dec. 11, 1819, to W. 8f G. Tuckerman, to secure the payment of ,f444,03, with interest. On the 8th of April, 1822, his right in equity of redemption was duly sold on execution, and purchased by the plaintiff, to whom a deed was accordingly made. On the 15th of October 1822, the Tuckermans assigned their mortgage to the defen * dant, who entered to foreclose on the 19th of November following. A short time before the expiration of the three years, the plaintiff sent his son Levi to the defendant to ascertain what amount he claimed to be due on the mortgage ; to whom the defendant replied that he claimed $564,25, and would take nothing less. A few days afterwards, Levi paid this sum for his father.
    Early in January 1822, Levi the mortgagor sold the timber on this lot, or a part of it, by parol, to the plaintiff, (he agreeing to cut it,) for the estimated value of $150 5 which sum the plaintiff paid Levi about the time of the sale, and before much of the limber was cut. The defendant was employed to haul die timber to the mill, which he did, partly in the winter of 1822, and partly in the following year; but withheld it from the plaintiff; and afterwards sold and converted it to his own use. The Tuckermans thereupon commenced an action against the defendant, his brother, and Levi, to recover the value of the timber so cut and hauled; pending which the parties entered into an agreement that certain arbitrators should appraise the value of the land, and of the timber and wood cut as above mentioned; that the defendant should pay these two sums to the Tuckermans, who should thereupon give him an assignment or conveyance of their title to the land. Under this agreement the land was estimated at $252, and the timber and wood at $200 ; which sums were paid by the defendant, and the mortgage was assigned to him according to the contract.
    Upon these facts the defendant contended that the plaintiff was not entitled to recover; because, 1st. The sale of the timber from Levi B. Erskine to the plaintiff, being by parol, was void by the statute of frauds. 2dly. The timber was partly cut and hauled before the plaintiff purchased the right in equity of redemption. 3dly. Whatever was received by the defendant out of the timber and wood, and by him paid over to the Tuckermans, extinguished, at the moment of payment, so much of Erskine’s debt; and for this sum, therefore, the defendant was not accountable to the mortgagor, nor to the plaintiff; and if the plaintiff paid more than was due to redeem the land, it was a voluntary payment, and could not be recovered back.
    The chief justice, however, overruled these positions, instructing the jury in favor of the plaintiff’s right to recover. And a verdict being returned for the plaintiff, the foreman, in answer to an inquiry from the bench, stated that in the estimate of damages they had not included the two hundred dollars, being the appraised value of the timber, but left it in the defendant’s hands. The verdict was taken, subject to the opinion of the court upon the plaintiff’s right to recover.
    
      Allen and Greenleaf, for the defendant,
    maintained the positions taken at the trial; and to the first objection cited Crosby v. Wadsworth, 6 East, 602; Teal v. Auty, 2 Brod. & Bing. 99 ; Cook v. Stearns, 11 Mass. 533; 2 Stark. Ev. 598, and cases there collected. The plaintiff, they said, had no title to the trees till he purchased the equity of redemption; which was not till after most of them were cut. And even then he had no title against the Tuckermans, whom the defendant had paid for the trees. Whatever the mortgagees thus received, extinguished, eo instante, so much of the debt due to them. For this sum, therefore, the defendant is not accountable to the plaintiff. And if the plaintiff paid more mon-e.y than was duo on the mortgage, it was a voluntary payment, which cannot bo recovered back. If too much was demanded, he might lmve brought his bill to redeem.
    As to the answer of the foreman, being neither the point in issue, nor a special verdict, it was extra-official and ought to be disregarded.
    
      Sprague and Child, for the plaintiff,
    to the point that the salo of the trees was not within the statute of frauds, cited Gardiner Manufacturing Comp. v. Ileald, 5 Greenl. 331; Parker v. Stan-itand, 11 Mast 3(52 ; Warwick v. Bruce, 2 Maulé & Selw. 205 : 1 Phil. Ev. 3G5, 366 ; Whipple v. Frost, 2 Johns. 418; New-comb v., Hamer, 2 Johns. 421, note ; Bostwick v. Beach, 3 Bay, 476 ; .fLnon. 1 Ld. Maym. 182 ; 4 Stark. 599; Sugd. Vend. 58, 59, 60; Fits. Abr. Trespass, 149; Bro. Abr. Trespass, 273: Freer v. Uardcnburg, 5 Johns. 271 ; Cook v. Stearns, 11 Mass. 533 ; Viner’s Abr. tit. Idéense, A. E. I). G.‘, Hob. 173 ; 1 Ath 175; 1 Dane’s Abr. 650; Benedict v. Be'bee, 11 Johns. 145 ; Hare v. Celcy, Oro. El. 143; Bradish v. Schenck, 8 Johns. 151; Jackson v. Brownell, 1 Johns. 267. That at any rate, it was an, executed contract, and so valid. Davenport v. Mason, 15 Mass. 92 ; Winter v. Bockwell, 8 East, 310; Ricker ¶. Kelley, 1 Greenl. 117; Parkhurst n. Van Cortlant, 14 Johns, 15; Tucker v. Bass, 5 Mass. 164; 2 Stra. 783; 2 Fern. 455; 3 Ves. jr. 378; Wilkinson n. Scott, 17 Mass. 249 ; Pomeroy v. Winship, 12 Mass. .514.
    And that the mortgagor might well recover in this action upon ihe general counts, as for rents and profits received, over and above (he sum due; or for money paid to avoid a forfeiture; or extensively taken; Turell v. Merrill, 17 Mass, i 17 ; Taylor v. Townsend, 6 Mass. 270 ; Joy v. Oxford., 3 Greenl. 131; Taylor v. Weld, 5 Mass. 109.
   The opinion of the Court was road at the ensuing September term, as drawn up by

Weston J,

The title of the plaintiff to the timber, for the proceeds of which this action is brought, is contested by the defendant, The timber, with the land upon which it stood, originally belonged to Levi B. Erskine, who, at the time he made the sale relied upon by the plaintiff; had a right to dispose of it against all persons except the Tuckermans, to whom the land had been mortgaged, Was the sale of the timber, being by parolj good between, the contracting parties, so as to pass the property in the timber to the plaintiff? Upon this question there has been some vacillation in the authorities. In an anonymous case, reported in 1 Ld. Raymond, 182, the court held that the sale of growing timber by parol was not void by the statute, of frauds, it being regarded as a chattel, and not as an interest in land.' Bufa sale of growing grass, iCrosby v. Wadsworth, 6 East 602, was held to be within the staute. In Parker v. Staniland, 11 East 362, a sale of potatoes bparol in the ground, then grown, was sustained but a sale of growing turnips was held by the court, in Emerson v. Heelis, 2 Taunt. 38, to be within the statute. In Warwick v. Bruce, 2 Maule & Selw. 205, a sale of potatoes then growing was decided not to be an interest in land, requiring a written contract. Teal v. Auty, 2 Brod. & Bing. 99, was assumpsit for the price of certain poles, which had been sold while standing and growing, to the defendant. The original contract was held to embrace an interest in land, which could not be enforced without evidence in writing 5 but the contract being executed, and the poles actually cut and carried away by the defendant, the court decided he was liable for their value, if that could be proved. In New York the sale of a growing crop by parol has been held good, and the authority of Crosby v. Wadsworth questioned. Newcomb v. Ramer, 2 Johns. 421, in note. Freer v. Hardenburgh, 5 Johns. 271. In Connecticut the sale of gravel, stones, timber trees', which by the contract are to be separated and carried away, and the boards and bricks of a house, to be pulled down and taken off, is deemed not within the statute.

Standing timber is annexed to the freehold, passes with it, and often constitutes a great part of its value. A parol sale of the tim-her, to remain on the land during the pleasure of the buyer, or for 'an indefinite period, might affect injuriously subsequent purchasers of the land; but if to be cui and carried away within a reasonable bine, or as soon as it can conveniently be done, is not liable to the same objection. Trespass would not lie by the original owner, for entering and cutting under such a contractj for it would at least amount to a license, which need not be in writing. Cook v. Stearns, 11 Mass. 533. The trees when cut may clearly be sold by parol, like any other chattel. But a license is in its nature revocable ; and a sale of the land, without reservation, before the timber is cut, would doubtless he held to be a revocation or determination of tbo licence. And this would suiBcicsilly protect the interest of the purchaser of the land. Upon this ground, the sale ■oí' timber to be cut and carried away when cut, would pass the property. And the purchaser would be thereby licensed to enter for this purpose, so long as the license remained unrovoked. If (hose principles are tenable, the sale Lu question was good, although made by parol. Bui apon ibis point wo give no decided opinion, being fully satisfied that the sale was good between the parties as a contract executed. The plaintiff entered under the contract, and by permission of the owner, cut tito timber, carried it away, and paid the full consideration demanded. The actual receipt of the price constituted a sale of she timber, after it Was severed, if it was not consummated before. After it was severed, there could be no pretence that it constituted an interest isi land, and a sale thus made is entirely relieved from any objection arising under the statute of frauds.

But this sale was made, subject to ib.c paramount rights of the Tuckcrmms, in whoso place the defendant claims to stand, by substitution. Had the proceeds of this timber been applied to the payment of their demand, either before the assignment or after-wards, it would have extinguished the demand pro tanto ; bat the dofoudaiu, having claimed and received the whole without deduction, cannot be permitted to say that it was so applied. It would bo falso as wdl as unjust. The defendant was employed by the plaintiff lu haul the Umber for Mm, and ho sold it and convotUsd the proceeds to his own use. Upon these facts, ho is satsworabic tw die plaintiff for the sunt received, unless ho applied it in part pay-xicar of tho mortgage ; but this ho has not dcuc i and it he eves-intended to do it, he'waived his right to make such application when he received the whole amount, without allowing it.

Judgment on the verdict„  