Pattison's Appeal
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The opinion of the court was delivered, May 11th 1869, .by Thompson, C. J.
It would strike the unprofessional mind in *297 this state with scarcely less surprise than it would the professional, if it were announced that the growing timber on a man’s land might be held by a contract in parol, against everybody, whilst the soil itself could only be legally transmitted by an instrument of writing; that what we have been accustomed to consider an integrant part of the freehold, the growing timber, might be sold and transmitted with no more solemnity than a pile of boards at a saw-mill, or bushels of wheat in a barn. If such should come to be the law, its practical operation would be, that one man might own all the timber on another man’s land by a secret and unrecorded contract, while the title to the soil remained in the latter. Or A. might own the timber on Black Acre, and B. that on White Acre, and so on to the end of the chapter. If such interests might pass by parol, or word of mouth, and become mere chattel interests, they would in time be liable in the hands of owners,, to seizure and sale by sheriffs and constables as personal chattels. From such a condition of things nothing but inextricable confusion could possibly follow. We regard a contract for the standing timber on a tract of land, to be taken off at discretion as to time, as an interest in land, and within the Statute of Frauds and Perjuries, the transmission of which must be by writing.
The distinction in the English books between the prima vestura and thefruetus industriales of land, namely, the natural growths, and the products of agriculture, has always been regarded with us. We have uniformly held that growing crops pass to administrators and not to heirs, and that they are liable to be seized and sold on execution as personal chattels of a debtor. So in regard to the former, whenever we have spoken on the subject there is a concurrence likewise in the doctrine. In Yeakle v. Jacob, 9 Casey 376, this court held, that a grant to one of a perpetual right to enter and cut timber on another’s land for the purpose of repairing fences, was within the Statute of Frauds and Perjuries; that such a right is an interest in land and cannot pass by parol. This case was cited and applied in Huff v. McCauley, 3 P. F. Smith 206. Many, if not all the authorities bearing on this question, may be found referred to in the arguments and opinions in these two cases, and I will not burden this opinion with them. We think the principle of them is indisputable. Nothing can be drawn from the case of Caldwell v. Fulton, 7 Casey 475, and subsequent cognate cases, in which this court has held to the right of severance of a freehold estate into one or more estates of freehold within the same boundaries, that is, the mineral under the surface, to constitute a separate estate from the surface land. The distinctiveness of the purposes and uses of these interests, renders the division natural and not productive of any confusion, and very important to both interests. But it was never held that either was a personal chattel, or to be so treated. Nor are we *298 for a moment to doubt, but a conveyance of all the timber on a man’s land to be taken at discretion, is not an interest in land which may be conveyed by an instrument in .writing. That is not our question: it is whether such an interest is personalty or realty ? and we unhesitatingly hold it to be the latter. It is a rule which admits of few, if any exceptions, that real interests seized in execution are to be sold and pass as real estate. Applying these principles to the case in hand, and regarding as we do, the interest acquired and held by Middaugh and Pattison in the timber on the land mentioned in the bill as an interest in the realty, the sale of Pattison’s interest as a personal chattel, we hold did not pass the title: St. Bartholomew v. Wood, ante p. 96. The learned judge was altogether right in his ruling on this point.
But the plaintiff claims that the assignment to him by T. Pattison vested in him the right to call -on the defendants, the vendees of Hungerford, who purchased from Nelson L. Somers, to account for profits accruing to his assignee under the terms of an alleged contract with Somers, to reconvey to him and Middaugh, on being paid advances, interest, &c., made by him to their benefit and use. That Somers has been paid has not been established by preponderating proof. Indeed, by any proof, for we think the assignor was not a competent witness for the assignee, on the principle of Post v. Avery, 5 W. & S. 509 , and other cases. That, however, need not be regarded now. The testimony was heard and it was rebutted by countervailing proof, which left the case in equilibrio, if not against the plaintiff. But in view of another consideration this was of no consequence. It was neither charged nor proved by the plaintiff that Hungerford had notice of the secret agreement between Somers and Middaugh and Pattison, when he purchased of the former. Somers’s title was indefeasible on its face, and without notice Hungerford took what it purported, a full title. This being so, Somers’s conveyance passed every interest of Middaugh and Pattison to Hungerford, and of course,' left Pattison to look to Somers for redress, and not to innocent purchasers. The fact that Hunger-ford afterwards took a conveyance also from Middaugh establishes nothing. It might have been for a good reason or a bad one; whether the one or the other, it establishes nothing of itself, and aids nothing in the proofs.
After a careful examination of all the grounds taken, we think the case was rightly determined by the learned judge below.
The decree is affirmed at the costs of the appellant and the appeal is dismissed.
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