
    Goodyear vs. Vosburgh.
    It is well settled, in this State, that standing trees form a part of the land, and as such, are real property,
    An owner in fee of the land has the same estate in the trees as in tire soil, unless there has been a severance of ownership by such a conveyance as is adequate to effect it.
    An instrment in writing by which a lessee for lives, of land, assumes, with the assent of the lessor, to convey to a purchaser all the wood and timber thereon, with authority to the purchaser, at any time thereafter, to enter upon the premises and take off the same, covers such an interest in land as constitutes a freehold estate.
    Ho writing less than a deed legally executed is sufficient to divest the grantor of such an estate.
    If the instrument by which it is attempted to be conveyed is not attested by at least one witness, it will not take effect, as against a purchaser or incumbrancer, until it is properly acknowledged by the grantor.
    The case of Warren v. Leland, (2 Barb. 613,) distinguished from the present case.
    APPEAL by the defendant from a judgment entered upon the report of a referee.
    The action was brought to recover the value of a quantity of pine timber and logs cut by the defendant, and which were claimed by the plaintiff. The referee reported in favor of the plaintiff.
    
      L. L. Bundy, for the appellant.
    
      S. Sturges, for the respondent.
   By the Court, Parker, J.

This action was brought to recover the value of a quantity of pine timber cut by the defendant, which the plaintiff claims to own. It was tried before a referee, who found in favor of the plaintiff, and ordered judgment for $60, damages, besides costs; from which judgment the defendant'appeals.

The facts, so far as material, in the view I take of the casé, are as follows: The plaintiff claims the timber in. question by virtue of a sale of the same to him and Peter Collier, now deceased, Tby one John Beames, who was lessee of the land on which the timber was standing, under a lease made to him by Goldsboro Banyer, on the 24th day ‘of November, 1812, for the term of three lives then in being, two of which still subsist. The instrument in writing by which the sale was made was dated February 13,1833, and purported to convey all the wood and timber on about fifty acres of the land covered by the said lease, with authority to the said vendees thez’eof, at any time thereafter to enter upon the premises and take off the same. It purported to be signed and sealed by said Beames, and to be witnessed by James G. Walley. The referee found that the signature of James G. Walley (who, at the time of the trial, was deceased,) was not genuine, and that he was not a subscribing witness to the instrument. On the 1st day of January, 1867, the said Beames acknowledged the execution of the instrument, before a proper officer. Peter Collier died in 1846, intestate, leaving him surviving one child and sole heir at law, a daughter, who was married to the plaintiff in 1822, and who is still his wife, and by whom he has living issue. It also appears that on the 11th of November, 1833, Beames assigned the said lease, under his hand and seal, to said Collier & Goodyear.

The defense rests upon an alleged title in the defendant’s wife to the locus in quo, under whom the defendant acted in cutting- and taking off the timber in question. Such title is made as follows: On the 3d day of Januazy, 1837, the said Beames gave a quit-claim deed of seventy-one acres, comprising the premises on which the timber was cut, to E. It. Ford. On the 4th of Apzil, 1864, Ford and wife conveyed the same to B. C., Hodge, and on the 1st of Apz*il, 1867, Hodge conveyed to the defendant’s wife. Under these conveyances she claims the leasehold estate in the premises.

On the 1st of May, 1865, G. S. Banyer (who had sueceeded to the interest of the lessor) conveyed the premises on which the timber stood, to John Beames, Jr., and Dewitt C. Beames, subject to the said original lease, also to the said deed of seventy-one acres to said Ford, also subject to all claims of Collier & Goodyear, or Jared Goodyear, and also subject to all deeds, conveyances, contracts and sales made by said John Beames or his assignees, of said premises, or any part thereof. On the l'lth of March, 1866, the said John and Dewitt Beames conveyed said seventy-one acres to the defendant’s wife, subject to the same incidents as in said deed to them.

Hone of these deeds or instruments appear, from the evidence or findings, to have been recorded, except as follows, viz: the deed of 3d of January, 1837, from Beames to Ford, on the 16th of January, 1837; the deed of 4th April, 1864, from Ford and Hodge, on the 11th of June, 1864; the deed of 1st April, 1867, from Hodge to the defendant’s wife, in February, 1868; the deed of 1st May, 1865, from G. S. Banyer to John and Dewitt Beames, on the 3d of July, 1866; and the deed of 11th March, 1866, from John and Dewitt Beames to the defendant’s wife, on 9th of April, 1866.

The referee finds that Ford, when he took said deed, to him, knew that Collier & Goodyear claimed to have bought the timber on said piece of land, on which the same was cut by the defendant.

The question of Beames’ right, as lessee, to sell the timber in question, is disposed of by the fact found by the referee, that his lessor had recognized, and in effect ratified, the sale, so far as his interests were concerned.

The leading'question in the case, as here presented, is, whether the interest in the wood and timber purchased by Collier & Goodyear, under the instrument in writing dated February 13, 1833, was such an interest in land as constituted a freehold estate, or not. The learned referee held that it was not, and therefore that the conveyance thereof, although there was neither subscribing witness to the instrument, nor acknowledgment thereof, was sufficient to convey the title to the vendees, at the time of its execution. This holding I am constrained to think erroneous. If the doctrine of the case of Warren v. Leland, (2 Barb. 613,) can be maintained, this ease is essentially different, inasmuch as the instrument of sale clearly contemplates the transfer, not only of all the wood and timber then standing upon the premises, but of the right to its occupancy and growth upon the premises, in perpetuity; for it expressly gives the vendees the right at any time thereafter to enter upon the premises atid take off all the timber and wood within the bounds that day marked out. The doctrine of the case above cited, that a sale and conveyance of growing trees is not the conveyance of a freehold estate, and may be made by an instrument in writing not under seal, is thus qualified by the court making the decision : “ These observations are to be deemed applicable to a conveyance of the growing trees standing on the land at the time of the conveyance, and not to a conveyance of an interest in any future trees which may grow on the land; which might embrace an exclusive interest in the soil so far as may be necessary for the support and nourishment of the trees; and these observations ought, perhaps, also to be qualified by an application of them to a conveyance of growing trees, in prospect of their separation from the soil within a reasonable time.” The decision in that case was not intended, therefore, to reach such a case as this; so that it is unnecessary here to discuss the question of its soundness.

It is well settled, in this State, that standing trees form part of the land, and as such are real property. (Green v. Armstrong, 1 Denio, 550. McGregor v. Brown, 6 Seld. 117. The Bank of Lansingburgh v. Crary, 1 Barb. 542. Vorebeck v. Roe, 50 id. 302. Warren v. Leland, 2 id. 613.) An owner in fee of the land has the same estate in the trees as in the soil; unless there has been a severance of ownership by such conveyance as is adequate to effect it.

How, although, in the case at bar, the grantor of the trees had but an estate for lives in the land, his conveyance of the trees purported to convey the entire interest in them, with the right of their indefinite continuance on the land. If he had the power to make such a conveyance—which is not here questioned—the question now is, did he, by the instrument which he executed, make a conveyance which became operative, as against Ford, prior to his conveyance to him, as above stated ?

The statute provides thatevery grant in fee of a freehold estate shall be subscribed and sealed by the person from whom the estate or interest conveyed is intended to pass, or his lawful agent; if not duly acknowledged previous to its delivery, * * its execution and delivery shall be attested by at least one witness; or, if not so attested, it shall not taJce effect as against a purchaser or incumbrancer, until so acknowledged.” (1 R. S. 738, § 137.)

There can be no doubt, I think, that the interest or estate which the instrument of sale purported to grant, in the trees, was at least a freehold estate. The entire interest in this portion of the land was, by the terms of the deed, granted. If, instead of the trees, it had been the soil so granted, there would be no doubt that it would have been a grant of at least a freehold estate. The subject matter of the grant being the trees, confessedly a part of the land, I cannot see how -the estate granted, in this part of the land, is less- than if it were the soil.

Even if, by a legal fiction, the grant operates to effect a severance of the trees from the soil, so as to render them henceforth personal property, still the estate which passed from the grantor is no less a freehold estate than if no such effect was produced; and no writing less than a deed legally executed is sufficient to divest the grantor of such estate. That the estate, when it reaches the grantee, is transmuted, by fiction of law, into personal property, can have no effect upon the requirement of the statute above quoted. This reasoning seems to me sound, although it conflicts with the decision in Warren v. Leland. But, as above shown, it is not necessary to resort to it in this case, in view of the extent of the grant, which, even under the ease of Warren v. Leland, is clearly within the terms and effect of the statute above cited.

[Broome Generar Term,

January 26, 1869.

The result then is, that the conveyance of the trees to Collier & Goodyear did not take effect, as against Ford and his grantees, until January 1, 1867, when it was acknowledged by Beames. Prior to that time, Beames’ interest in the premises, through his conveyance to Ford and the subsequent mesne conveyances, had vested in the defendant’s wife. So that the failure of the conveyance to “take effect,” as against these purchasers, until after their titles had accrued, left the plaintiff with no title, as against the defendant.

This view of the effect of the instrument of sale to Collier & Goodyear disposes of the case, and shows that judgment should have been given for the defendant.

The judgment appealed from must be reversed, and a new trial granted; costs to abide the event.

Falcom, Foaa-énan and Farlcer, Justices.]  