Page:Harvard Law Review Volume 8.djvu/390

374 374 HARVARD LAW REVIEW. trees by an oral bargain with leave to enter, cut, and carry them away forthwith, acquires no interest in the land, but only a license to enter upon the land, etc., a mere permission, which prevents such entry from being a trespass, but which maybe revoked before it is acted upon ; and an entry afterwards would undoubtedly be a trespass for which an action would lie.^ But this does not touch the question of the liability of the vendor to the vendee for revok- ing the license, and so depriving the vendee of the power to take and carry away his purchase, which is the real test of the validity of the contract. Much stress seems to be sometimes laid on the circumstance which party is to cut the trees. That seems quite immaterial, except that where the seller agrees to do so, and to deliver the thing sold, either as cordwood or as timber, it more clearly appears to be a sale, not of trees, but of what had once been trees, but was so no longer. This was really the case of Smith v. Surman.^ The seller was to cut the trees and measure them in order to ascertain the price, as the sale was of " timber," at so much per foot. The judges thought it was not a sale of " standing trees " at all, but only of so many feet of timber, and of course not within this branch of the Statute. And this has been so held even in New York, notwithstanding the case of Green v. Armstrong.^ But if the vendee has a right to enter and cut the trees and does so, they are thereby changed into personal property as much as if cut by the vendor, and it can make no difference by whom the axe is wielded. Any article on the sale of standing trees would certainly be in- complete which made no allusion to two other somewhat similar sales, namely, that of annual crops, and that of other articles usu- ally considered as parts of the realty. I. It now seems to be the better rule that sale of annual crops, such as potatoes, turnips, etc., are not within the Statute, whether they are then mature or not. In some instances apparently the crop attained most of its growth after the sale, but that fact was thought quite immaterial.* The same rule has often been declared 1 Giles f. Simonds, 15 Gray, 441 {i860) ; Drake v. Wells, n Allen, 141 {1865). 2 9 B. & C. 561 ; 4 M. & R. 455 (1829). 3 I Denio, before cited. Killmore v. Hewlett, 48 N. Y. 569 ; Boyce v. Washburn, 4 Ilun 792. V. Roberts, 5 B. & C. 829 ; 8 D. & R. 611 ; Dunne v. Ferguson, Hayes, 540; Sainsbury V. Matthews, 4 M. & W. 343, a marked case ; Jones v. Flint, 2 P. & D. 594 ; 10 Ad. & El. 753.
 * Parker v. Staniland, 11 East, 362 ; Warwick v. Bruce, 2 Maule & S. 208 ; Evans