Page:Harvard Law Review Volume 8.djvu/387

371 SALES OF STANDING TREES. 37 1 of that contract. It was held that the sale was valid, though oral ; that the defendant ^indertook to either sever the trees from the soil, and deliver them to the plaintiff, or else to permit the plaintiff to sever them, and it was immaterial whether the severance was to be made by the plaintiff or by the defendant. And although the license to the plaintiff to enter and sever them passed no interest in the land, and might be revoked by the defendant before the trees were removed, yet, said the Court, "if he exercised his legal right in violation of his agreement, he is responsible in damages," and the plaintiff had a verdict. In Claflin v. Carpenter,^ the plaintiffs had sold to one McDavit "a quantity of wood and timber, part of which was cut and lying on their land, and part uncut and standing," and McDavit immedi- ately mortgaged it back to them to secure the payment therefor, which mortgage was recorded only in the records of mortgages of personal property, and not in the registry of deeds of real estate. McDavit subsequently sold and delivered some of the wood to the defendant, who had no knowledge of the mortgage. It was held that both the wood which was cut and that which was standing when the mortgage was made was to be considered as personal property and not real estate ; that the mortgage was properly recorded as a per- sonal property mortgage, and that trover would lie against the purchaser after a demand and refusal. See also Cain v. McGuire.^ In Nettleton v. Sikes,^ the plaintiff orally contracted with the de- fendant that he might cut a quantity of white oak trees on the plaintiff's land, take the bark therefrom at a certain price per cord, and cut up the wood for the plaintiff, at the market price for cut- ting. The defendant cut a number of the trees and peeled the bark therefrom, but before it had been taken away he was forbid- den by the plaintiff to enter again upon the land. Subsequently the defendant did enter and carry away the bark, for which the plaintiff brougtit trespass quare clanswn. It was held that if the defendant merely had a license to enter, it might be revoked, and the action would lie ; but that if there was a valid contract that he might cut the trees and take off the bark, it could not be revoked or rescinded after the bark had been peeled, so as to make him a trespasser for carrying it away, and that an oral contract was suffi- 1 4 Met. s8o (1842). 2 13 B. Monr. 340 (1852); Douglas v. Shumway, 13 Gray, 502 (1859). « 8 Met. 34 (1844).