144 CONTRACTS REGARDING GROWING TIMBER 



plete and must be enforced; but instead of enforcing such 

 contracts as agreements for the sale of future goods, as is 

 done in Massachusetts, Maine and Maryland, they give the 

 purchaser relief upon the ground that in sales of timber in 

 which a prompt separation of the trees from the soil is con- 

 templated the constructive severance of the trees at the time 

 of the sale vests the title to them in the vendee and the ven- 

 dor is required to respond in damages for any action on his 

 part, after the sale but before severance, which deprives the 

 vendee of his property interests in the trees. l In Mass- 

 achusetts the intention of the parties to a parol contract 

 for th sale of standing trees that title shall pass at once is 

 not given legal effect until the trees are severed, while in 

 Kentucky the intention takes effect immediately and the 

 trees sold become chattels while still standing. In Ken- 

 tucky, if no definite time for removal is fixed in the agree- 

 ment, there is a presumption of law that the trees are to be 

 at once removed; but, if from all the circumstances connect- 

 ed with the sale it is clear that the parties intended that the 

 trees should stand for a time upon the land and draw nour- 

 ishment from the soil then a parol contract will not operate 

 to transfer the title to the growing trees. 2 However, it 

 should be noted that although in the leading Kentucky case 3 

 the trees sold by parol had actually been selected and 

 marked by the vendee with the vendor's consent, yet the 

 court held that if subsequent to that time the title to the 

 land were acquired for a valuable consideration by an inno- 

 cent purchaser without notice of the previous parol sale, 

 such purchaser could hold the trees and the vendee of the 

 trees must look to his vendor for damages for breach of con- 

 tract. In Tennessee, as well as in Kentucky, a parol sale 

 of standing timber will be enforced against a subsequent 



1. Campbell v. Phillips, 30 Ky. L. Rep. 567, 99 S. W. 277; Tilford v. Dotson, 106 Ky. 



755, 21 Ky. L. Rep. 333, 51 S. W. 583; Byasse v. Reese, 4 Mete. (Ky.) 372, 83 

 Am. Dec. 481 (1863); Cain v. McGuire, 13 B. Mon. (Ky.) 340; Wiggins v. Jack- 

 son, 73 S. W. 779, 24 Ky. L. Rep. 2189: Card well v. Atwater, 15 Ky. L. Rep. 541, 

 570; Hunter v. Burchett, 5 Ky. L. Rep. 770; Sproule v. Hopkins, 4 Ky. L. Rep. 

 533; Lockeshan v. Miller, 16 Ky. L. Rep. 55; But See, Ayer & Lord Tie Co. etc. 

 v. Davenport, 26 Ky. L. Rep. 115, 82 S. W. 177. 



2. Bowerman v. Taylor, 127 Ky. 812, 1O6 S. W. 846, 32 Ky. L. Rep. 671; Bell County 



Land etc. Co. v. Moss, 17 S. W. 354, 30 Ky. L. Rep. 6; Asher Lumber Co. v 

 Cornett, 63 S. W. 974, 23 Ky. L. Rep. 602, 56 L. R. A. 672. 



3. Byasse v. Reese, 4 Mete. (Ky.) 372. 



