and notes to the sections; Benjamin on Sales, §114; Townsend v. Hargraves, 118 Mass. 325, and cases there cited.

There are few decisions that bear directly upon the precise point which this case presents to us. From the nature of things, a state of facts involving the question would seldom exist. But we regard the case of Townsend v. Hargraves, above cited, as representing the principle very pointedly. It was there held that the statute of frauds affects the remedy only, and not the validity of the contract; and that where there has been a completed oral contract of sale of goods, the acceptance and receipt of part of the goods by the purchaser takes the case out of the statute, although such acceptance and receipt are after the rest of the goods are destroyed by fire while in the hands of the seller or his agent. The date of the agreement, rather than the date of the part acceptance, was treated as the time when the contract was made, and the risk of the loss of the goods was cast upon the buyer. Vincent v. Germond, 11 Johns. 283, is to the same effect. We are not aware of any case where the question has been directly adjudicated adversely to these cases. Webster v. Zielly, 52 Barb. (N. Y.) 482, in the argument of the court, directly admits the same principle. The case of Leather Cloth Co. v. Hieronimus, L. R. 10 Q. B. 140, seems also to be an authority directly in point. Thompson v. Alger, 12 Met. 428, 435, and Marsh. v. Hyde, 3 Gray, 331, relied on by defendant, do not, in their results, oppose the idea of the above cases, although there may be some expression in them inconsistent therewith. Altogether another question was before the court in the latter cases.

But there are a great many cases where, in construing the statute of frauds, the force and effect of the decisions go to sustain the view we take of this question, by the strongest implication: such as that the statute does not apply where the contract has been executed on both sides, Bucknam v. Nash, 12 Maine, 474;-that no person can take advantage of the statute but the parties to the contract, and their privies; Cowan v. Adams, 10 Maine, 374;-that the memorandum may be made by a broker; Hinkley v. Arey, 27 Maine, 362; or by an auctioneer; Cleaves v. Foss, 4 Maine, 1;-that a sale of personal property is valid when there has been a delivery and acceptance of part, although the part be accepted several hours after the sale; Davis v. Moore, 13 Maine, 424; or several days after; Bush v. Holmes, 53 Maine, 417; or ever so long after; Browne, St. Frauds, 337, and cases there noted; that a creditor, receiving payments from his debtor without any direction as to their application, may apply them to a debt. on which the statute of frauds does not allow an action to be maintained;

Haynes v. Nice, 100 Mass. 327;-that a contract made in France, and valid there without a writing, could not be enforced in England without one, upon the ground that the statute related to the mode of procedure and not to the validity of the contract; Leroux v. Brown, 12 C. B. 801; but this case has been questioned somewhat;-that a witness may be guilty of perjury who falsely swears to a fact which may not be competent evidence by the statute of frauds, but which becomes material because not objected to by the party against whom it was offered and received; Howard v. Sexton, 4 Comstock, 157;-that an agent who signs a memorandum need not have his authority at the time the contract is entered into, if his act is orally ratified afterwards; Maclean v. Dunn, 4 Bing. 722; that the identical agreement need not be signed, and that it is sufficient if it is acknowledged by any other instrument duly signed; Gale v. Nixon, 6 Cow. 445;— that the recognition of the contract may be contained in a letter, or in several letters if so connected by "written links" as to form sufficient evidence of the contract; that the letters may be addressed to a third person; Browne, St. Frauds, # 346; Fyson v. Kitton, 30 E. L. & Eq. 374; Gibson v. Holland, L. R. 1 C. P. 1;-that an agent may write his own name instead of that of his principal, if intending to bind his principal by it; Williams v. Bacon, 2 Gray, 387, 393, and citations there;-that a proposal in writing if accepted by the other party by parol, is a sufficient memorandum; Reuss v. Picksley L. R. 1 Exc. 342;-that where one party is bound by a note or memorandum the other party may be bound if he admits the writing by another writing by him subsequently signed; Dobell v. Hutchinson, 3 A. & E. 355; that the written contract may be rescinded by parol, although many decisions are opposed to this proposition; Richardson v. Cooper, 25 Maine, 450;-that equity will interfere to prevent a party making the statute an instrument of fraud; Ryan v. Dox, 34 N. Y. 307; Hassam v. Barrett, 115 Mass. 256, 258;—that a contract verbally made may be maintained for certain purposes, notwithstanding the statute;that a person who pay his money under it cannot recover it back, if the other side is willing to perform; and he can recover if performance is refused; Chapman v. Rich, 63 Maine, 588, and case cited; that a respondent in equity waives the statute as a defence unless set up in plea or answer; Adams v. Patrick, 30 Vermont, 516;-that it must be specially pleaded in an action at law; Middlesex Co. v. Osgood, 4 Gray, 447; Lawrence v. Chase, 54 Maine, 196;-that the defendant may waive the protection of the statute and admit verbal evidence, and become bound by it; Browne, St. Frauds, 135.

It may be remarked however, that in most courts a defendant may avail himself of a defence of the statute under the general issue. The

different rule in Massachusetts and Maine grew out of the practice act in the one state, and in the statute requiring the filing of specifications in the other.

It is clear from the foregoing cases, as well as from many more that might be cited, that the statute does not forbid parol contracts, but only precludes the bringing of actions to enforce them. As said in Thornton v. Kempster, 5 Taunt. 786, 788 "the statue of frauds throws a difficulty in the way of the evidence." In a case already cited, Jervis, C. J. said "The effect of the section is not to avoid the contract, but to bar the remedy upon it, unless there be writing." See analogous case of McClellan v. McClellan 65 Maine, 500.

But the defendant contends that this course of reasoning would make a memorandum sufficient if made after action brought, and that the authorities do not agree to that proposition. There has been some judicial inclination to favor the doctrine to that extent even, and there may be some logic in it. Still the current of decision requires that the writing must exist before action brought. And the reason for the requirement does not militate against the idea that a memorandum is only evidence of the contract. There is no actionable contract before memorandum obtained. The contract cannot be sued until it has been legally verified by writing; until then there is no cause of action, although there is a contract. The writing is a condition precedent to the right to sue. Willes, J., perhaps correctly describes it in Gibson v. Holland, supra, when he says, "the memorandum is in some way to stand in the place of a contract." He adds: "The courts have considered the intention of the legislature to be of a mixed character, to prevent persons from having actions brought against them so long as no written evidence was existing when the action was instituted." Browne, St. Frauds, §338; Benjamin on Sales, §159; Fricker v. Thomlinson, 1 Man. & Gr. 772; Bradford v. Spyker, 32 Ala. 134; Bill V. Bament, 9 M. & W. 36; Philbrook v. Belknap v., 6 Vt. 383. In the last case it is said, "Strictly speaking, the statute does not make the contract void, except for the purpose of sustaining an action upon it to enforce it."

Action to stand for trial.

A CONTRACT BASED ON A PROMISE TO ANSWER FOR THE DEBT OF ANOTHER MUST BE IN WRITING

DEXTER V. BLANCHARD

See under Suretyship and Guaranty, page 105

A CONTRACT FOR THE SALE OF GROWING TREES IS AN "INTEREST IN LAND"

STUART V. PENNIS

91 Va. 688 (1895)

RILEY, J. This was a suit in equity to compel the specific performance of a contract in writing for the sale of growing timber trees. Upon a demurrer to the bill, it was dismissed by the court.

There was, and could be, no objection urged against the relief sought, growing out of any indefiniteness as to the terms of the contract, or as to its subject matter. The defense of the appellee was that the subject of the contract was personal property, and not an interest in real estate; and being personal property, and there also being an adequate remedy at law for the breach of the contract, a court of equity would not specifically enforce it.

On the other hand, counsel for the appellant claimed that standing trees so pertain to the soil that a contract for their sale is, in law, a sale of an interest in land, and that under the general rule that a court of equity will always enforce, in a proper case, the specific performance of a contract for the sale of land (2 Minor, Inst. 867; Pom. Spec. Perf. 10), such relief should have been granted in this case.

We have been cited by counsel to no decision of this court on this subject, and are ourselves aware of none. Our attention was called to the case of McCoy v. Herbert, 9 Leigh, 548, but an examination of it shows that the question in controversy here was not there raised or decided. The sole question there was as to the validity of an assignment. of a contract of sale of certain trees standing in the woods, which had been bought for ship timber, and not whether the subject of the contract was an interest in land or chattels. There is scarcely any other subject upon which there is so great diversity of judicial decision. Whenever required to pronounce upon a contract for their sale, courts have seemed uncertain as to whether standing or growing trees should be classed as real or personal property. Not only have the courts of different jurisdictions decided differently, but the decisions of the same court within the same jurisdiction have not always been uniform. Particularly has this been the case with the courts of England, and their latest declaration on this question (Marshall v. Green, 1 C. P. Div. 35) has not escaped criticism from very high authority. Hirth v. Graham, 50 Ohio St. 57 (40 Am. St. R. 641), Benj. Sales (ed. 1892), 126, and an article by Prof. Washburn (the learned author of the work on Real Property) published in the Albany Law Journal, and to be found in the note to

the case of Purner v. Piercy, 17 Am. Rep. 595. The decisions of the highest courts in the several States of the Union have also been greatly at variance with respect to this subject. It will be found, however, upon an examination of them, that the weight of authority preponderates in favor of the view that a contract for the sale of growing trees is a contract for the sale of an interest in land, and is to be so treated. Hirth v. Graham, supra; Owens v. Lewis, 46 Ind. 488 (15 Am. R. 295); Green v. Armstrong, 1 Denio, 550; Slocum v. Seymour, 36 N. J. Law, 138 (13 Am. Rep. 432); Kingsley v. Holbrook, 45 N. H. 313 (86 Am. Dec. 173); Buck v. Pickwell, 27 Vt. 157; Harrell v. Miller, 35 Miss. 700, Bish Cont. 1294; and Washb. Real Prop. 366, 367.

Land includes everything belonging or attached to it, above and below the surface. It includes the minerals buried in its depths, or which crop out of its surface. It equally includes the woods and trees growing upon it. Rooted and standing in the soil, and drawing their support from it, they are regarded as an integral part of the land, just as the coal, the iron, the gypsum, and the building stone which enter so largely into the business commerce. Attached to the soil, they pass with the land, as a part of it. A conveyance of the land carries with it to the guarantee the right to the forests and trees growing upon it. In the dealings of men growing timber is ever regarded as a part of the realty. Upon the death of the ancestor, they pass with it to his devisee, or descend with it to his heir, and not to his executor or administrator. They are not subject to levy and sale under execution. And so, upon principle, sound reason, and authority, we are of opinion that they constitute an interest in or a part of the land, and must be so treated by the courts. We are better satisfied with the conclusion reached, in that it has the merit of being easily understood and readily applied, not only to this particular industry, but to the many other useful, varied, and boundless natural products of a similar kind, of the section of the State whence this case comes, in whose development its people are becoming more largely engaged year by year.

For the foregoing reasons, we are of opinion that the court erred in sustaining the demurrer to the bill, and the decree complained must be reversed.*

*This is probably the law by weight of authority, although Connecticut, Kentucky, Maine, Maryland, and Massachusetts hold that a sale of growing trees to be immediately cut and removed by the purchaser, is a sale of personal property.— EDITOR.