Fletcher v. Livingston , 153 Mass. 388 ( 1891 )

Knowlton, J.

It is well settled that a contract like that relied on by the plaintiff does not immediately pass a title to property, and is not a sale or a contract for a sale of an interest in land, but an executory agreement for the sale of chattels, to take effect when the wood and timber are severed from the land, with a license to enter and cut the trees and remove them. Such a contract, if oral, is not within the statute of frauds, and its construction is the same as if it were in writing. Claflin v. Carpenter, 4 Met. 580. Giles v. Simonds, 15 Gray, 441. Drake v. Wells, 11 Allen, 141. Hill v. Hill, 113 Mass. 103, 105. United Society v. Brooks, 145 Mass. 410. The subject was fully considered by Chief Justice Bigelow in Drake v. Wells, ubi supra, and was discussed in the earlier case of Giles v. Simonds, and it was held that a purchaser of standing wood and timber, after severing the trees from the land, has an irrevocable license to enter and remove them, but that before they are cut his license may at any time be revoked by the landowner, leaving him no remedy but an action to recover damages for the breach of the contract.

In the present case the declaration contains three counts. The first two are founded on the plaintiff’s alleged ownership of the wood and timber as chattels. But she had no ownership so long as the trees remained attached to the realty, and her action cannot be maintained on either of these two counts. The third is for trespass quare clausum. The plaintiff by her contract acquired no interest in the land, and she was not in possession, and she cannot maintain an action of trespass. It does not appear that there was any breach of contract on the part of either of the defendants; but if there were, the plaintiff’s remedy would be in another form of action.

The evidence excluded was immaterial. The plaintiff is not shown to have had any such interest in the realty as to give her a right to pay the debts of the intestate for the purpose of preventing a sale of the land, or to enable her to call in question the administrator’s conduct in advertising the sale. If no sale had been made, the heirs at law might lawfully have prevented her from entering upon the land. Exceptions overruled.