Page:Harvard Law Review Volume 8.djvu/389

373 SALES OF STANDING TREES. 373 Which is the rule to be? The matter has been much discussed, and for my part I despair of laying down any rule which can stand the test of every conceivable case. It is said that there is an interest in lands within the statute when the sale is of something which, before it is taken away, is to derive benefit from the land, and to become altered by virtue of what it draws from the soil. The rule is an intelligible one, but one which it is almost impossible to apply with absolute strictness. The effect of such a rule, if strictly applied, would vary at different times of the year. If the sale was in the spring, and the removal of the thing sold were to be postponed but for two or three days, it would not, at its severance, in strictness be in the same state as it was at the time of sale. On the other handj in winter, when the sap is out of the tree, and it is standing, as it were, dead for the time being, there would be no appreciable change. It is almost impossible to say that the rule can be that, wherever anything, however small, is to pass into that which grows on the land out of the land, between the sale and the reduction into possession the contract is within the section." Brett and Grove, JJ., concurred in these general views, and the verdict for the plaintiff was set aside. This class of cases is based upon the principle that the contract is to be considered as an executory agreement for a sale, to take effect only when the trees are severed from the land, and converted into personal property, coupled, however, with a license to the pur- chaser to enter, sever, and remove the trees, if the seller is not to do so.^ The moment they are cut they become the personal prop- erty of the purchaser and may be sold by him, like any other per- sonal property, and his purchaser has the same right to go and take them away ; for the license to remove then becomes irrevo- cable.2 The license may be revoked before the cutting, since the trees are not yet the property of the purchaser, and if revoked, his only remedy is against the seller for breach of contract in not allowing him to enter and take the trees, the same as in a refusal to deliver any other personal property contracted for. This was the case in Whitmarsh v. Walker.^ In other words, the buyer of 1 See Hill v. Hill, 113 Mass. 103 (1873) ; United Society v. Brooks, 145 Mass. 415 (1888) ; Fletcher v. Livingston, 153 Mass. 390 (1891). 2 Yale V. Seely, 15 Vt. 221 (1843) 5 Nelson v. Nelson, 6 Gray, 385 (1856); Cool v. The Peters Box and Lumber Company, 87 Ind. 531 {1882).^
 * I Met. 313.