OWNERSHIP OF TIMBER AS AX INTEREST IN LAND 139 



a defense against suit for trespass or conversion, l and in 

 some states the revocation is actionable if done in violation 

 of an agreement. 2 



108. The Application of the Statute of Frauds to Tim- 

 ber Sales. One of the provisions of the fourth section of the 

 Statute of Frauds 3 enacted in England in 1676, was to the 

 effect that 110 action should be brought upon any contract 

 or sale of an interest in land unless the agreement upon 

 which the action was brought, or some note or memorandum 

 thereof, was in writing and signed by the party to be charged. 

 This statute or similar loc-al statutes apply to such contracts 

 and sales in every one of the United States. Since growing 

 trees are considered a part of the land on which they stand 

 we should expect all American courts to take the position 

 that no agreement for the sale of standing trees would be en- 

 forceable unless it were evidenced by writing and duly 

 signed by the party to be charged. As a matter of fact, this 

 js the general rule in the United States: 4 and in those states 



(Footnote G concluded from preceding rage) 



Mass. Driscoll v. Marshall, 15 Gray 62: Whitmarsh v. Walker, 1 Mete. 313. 

 Mich. Spalding v. Archibald, 52 Mich. 365, 17 X. W. 940, 50 Am. Rep. 253; Wil- 

 liams v. Flood, G3 Mich. 487, 30 X. W. 93; Greeley v. Stilson, 27 Mich. 



153. 



Miss. Walton v. Lowrey, 74 Miss. 4S4, 21 So. 243. 

 X. II. Hodsdon v. Kennett, 73 X. II. 225, GO Atl. 686; Houston v. Laflfee, 46 X. II. 



505: Woodbury v. Parshley, 7 X. II. 237, 26 Am. Dec. 739. 

 X. Y. Bennett v. Seutt, 18 Barb. 347. 

 Pa. Callen v. Hilty, 14 Pa. St. 286. 

 S.Dak. Polk v. Carney, 17 S. D. 436, 97 X. W. 360. 

 Wash Wel'-ver v. Advance Shingle Co., 34 Wash. 331, 75 Pac. 863; Kleeb v. Bard. 



7 Wash. 41, 34 Pac. 138. 

 Wis. Bruley v. Ciarvin, 105 Wis. 6.5, SI X. W. 103S, 48 L. R. A. 839; Keystone 



Lumber Co. v. Kolman, 94 Wis. 465, 69 X. W. 165, 59 Am. St. Kip. 905, 



34 L. It. A. 821. 



Eng. Hewitt v. Isliain, 7 FJxch. 77, 21, L. J. Exeh. 35. 

 Can. Breckenridge v. Woollier, 8 X. Bruns\v. 303; Xew Brunswick, etc. Land. 



Co. v. Kirk, 6 N. Brunsw. 413; Kerr v. Council, 2 N". Brunsw. 133. 



1. Whitmarsh v. Walker, 1 Mete. (Mass.) 313; Spalding v. Archibald, 52 Mich. 3G5; 



Woodbury v. Parshley, 7 X. 11. 237. 



2. Johnson v. Wilkinson, 139 Mass. 3, 29 X. E. 62, 52 Am. Kep. 698; Whitmarsh v. 



Walker, 1 Mete. (Mass.) 313. Cf. Davis v. Lbr. Co., 151 Ala. 5SO, 44 So. 629 

 (written license to cut not revocable.); Martin v. Johnson, 105 Me. 156, 73 Atl. 

 9G3 (Permittee not entitled to timber cut by trespasser.); Sinnot v. Seoble, 11 

 Can. S. Ct. 571. (Permit to cut on crown lands not an exclusive grant which 

 would support action against a later permittee.) 



3. 29 Car. II. Ch. 3, Sec. 4. 



4. Ala. Gibbs v. Wright, (Ala. App.) 57 So. 258; Heflin v. Bingham, 56 Ala. 566, 



28 Am. Kep. 776; Magnetic Ore Co. v. Marbury Lbr. Co., 104 Ala. 465, 



53 Am. St. Kep. 73. 

 Ark. McLeod v. Dial, 63 Ark. 10; Cf. Crane v. Patton, 57 Ark. 340. Cf. Davis v. 



Spann, 92 Ark. 213, 122 S. W. 495. 

 Fla. Jenkins v. Lykes, 19 Fla. 148, 45 Am. Kep. 19. 



(Footnote 4 continued on next page) 



