The trial court was of the opinion that this case was ruled by Curran v. Gordon, 169 Mich. 250. Being of the same opinion I hereby *Page 466 present my views in support of it. In Curran v. Gordon, Sarah E. Backus was the owner of the fee. In this case James Karns, plaintiff's grantor, was the owner of the fee. In the CurranCase, Sarah E. Backus gave Curran a bill of sale of certain standing timber. In this case, Karns gave defendant a bill of sale of certain standing timber. Both relied upon the bill of sale. In the Curran Case the owner of the bill of sale had possession of the land. In the present case the owner of the bill of sale was not in possession of the land. In the CurranCase, the death of Sarah E. Backus revoked the license to take the timber. Estelle v. Peacock, 48 Mich. 469. Her heirs also revoked the license. In this case the transfer of the fee to plaintiff revoked the license. White v. King, 87 Mich. 111. The plaintiff also revoked the license. In the Curran Case, we held the bill of sale conveyed no interest in the real estate but did convey a future chattel. In this case, the bill of sale to defendant conveyed no interest in the real estate, but did convey a future chattel when the timber was severed.
When the defendant Day sold the land to James Karns, plaintiff's vendor, he gave him a warranty deed of the premises. By this deed all the interest he had in the premises passed out of him. On the same day Karns gave defendant a bill of sale of the standing timber. This conveyance carried no interest in the standing timber, but did convey a future chattel and a license to carry it away when it was severed.Greeley v. Stilson, 27 Mich. 158. Before it was severed and became a chattel plaintiff revoked the license. This left defendant without any interest in the standing timber.
It was said in White v. King, supra, that:
"It is true that the absolute title to standing timber in this State will not pass except by deed, in the same *Page 467 manner as the fee of the land; but a license to enter and cut such timber, and remove the same, can be given, which, unless revoked before the timber is cut, and thereby converted into personalty, will pass the title to so much as has been severed from the soil. Greeley v. Stilson, 27 Mich. 157; Haskell v.Ayres, 35 Mich. 90; Wetmore v. Neuberger, 44 Mich. 362;Spalding v. Archibald, 52 Mich. 365 (50 Am. Rep. 253). A sale of the land would revoke the license, but in this case the defendant had only a bill of sale of the timber which was no more than a license."
In Morrill v. Mackman, 24 Mich. 279 (9 Am. Rep. 124), a license was defined
"as a permission to do some act or series of acts on the land of the licensor without having any permanent interest in it. * * * It is founded on personal confidence, and therefore not assignable. * * * It may be given in writing or by parol; it may be with or without consideration; but in either case it is subject to revocation." * * *
Mr. Justice WIEST attempts to break the force of this rule of law by a consideration of the equities of the present case and he cites Hicks v. Phillips, 146 Ky. 305 (142 S.W. 394, 47 L.R.A. [N. S.] 878). In my opinion that case has no application to this one because the right claimed was based upon a reservation and not on a bill of sale. In the Kentucky case when the conveyance was made all of the estate did not pass out of the grantor, but a reservation was made of the standing timber. This indicated an intention to reserve an interest in the real estate. Here all of the estate passed out of the grantor and he relied on a bill of sale which did not attempt to transfer any interest in the land. This rule of law should not be abrogated because this defendant appears to have some equities.
The decree of the trial court should be affirmed. *Page 468