This action was trover for the conversion of a large quantity of pine lumber, which was seized and sold by the defendant on an execution against John R. and Hiram Woodworth. The premises on which the timber grew, from which the lumber was manufactured, were known as lot No. 155, in Richland, in the county of Oswego. This lot had been contracted to be sold to the Woodworths, by an agreement executed by William C. Pierrepont, by virtue of a power conferred on him by the last will of Hezekiah B. Pierrepont, deceased. The contract contained a clause by which the Woodworths covenanted "not to cut, or suffer to be cut, for sale, any "timber from the said land, without the consent or approbation "of the said party of the first part, first had and obtained in "writing." The evidence which was given to prove a license, and which was finally excluded by the judge, was of the loosest and most uncertain character. Had it been received and considered, as competent evidence, it might possibly have been regarded as a justification for cutting timber on the premises, amounting in value, as assessed, to the sum of two thousand six hundred and sixty dollars. No written permission to cut timber was ever given; and by the terms of the contract, nothing short of that could confer the power. *Page 295
I. I am of the opinion that upon principle as well as authority, the evidence was rightly rejected. Why was this extraordinary prohibition inserted in the agreement in addition to the provisions requiring the payment of a large part of the consideration money, for the premises? It was because the principal value of the premises consisted of the timber growing on them; and to secure the plaintiffs against the consequences of mistakes and frauds and perjuries. By admitting the evidence, the judge would have defeated the intentions of the vendors in requiring the license to be in writing. The object of the parties was the same that induced the legislature to enact the statute of frauds itself. It was because the plaintiffs foresaw that a parol license might be misunderstood; that if there were important conditions annexed to it, those might be forgotten; and if the license was only extended within particular limits, or was confined to a particular quantity, those limitations might not be borne in mind by a rapacious purchaser; and, in fine, that the most important rights of the owners of lands, whose value consisted mainly in the timber on them, might lie at the mercy of mistaken and unscrupulous witnesses. It was for these reasons that they imposed the obligations on the purchasers in the very contract of sale, to cut no timber without a written license; and I think the judge was right on principle in rejecting the evidence, which would have deprived them of the advantages of this stipulation.
Again, this rule, which is founded on reasons of such unquestionable weight and soundness, is also supported by authority. It has been repeatedly held in England and in this state, that a covenant under seal cannot be discharged by a parol agreement before breach. (Suydam v. Jones, 10 Wend. 180;Kaye v. Waghorne, 1 Taunt. 429.) The discharge must be by matter of as high a nature as that which creates the debt or duty. (Preston v. Christmas, 2 Wilson, 86.) This is universally true when the action is founded on, or grows out of the deed or covenant. (Blake's case, 6 Co. 43 a; Alden v.Blague, Cro. Jac. 99.) In the case of Barnard v. Darling, *Page 296 11 Wend. 27,) the same doctrine was adopted. And in Delacroix v. Bulkeley, (13 Wend. 71,) the question came again before the court, and Savage, Ch. J. reviewed all the previous cases, and came to the conclusion that a sealed executory contract cannot be released or rescinded by a parol agreement. And where a landlord covenants to make certain alterations and improvements in a store, and by the same instrument let the store so to be altered, to a tenant for a term of years, at a stipulated rent, and by reason of the decay of the building the landlord was forced to change his plans, and accordingly took down the old building and erected a new one, to which change of plan the tenant assented, (but such assent was by parol only,) it was held by the court, in an action by the tenant against the landlord, for the nonperformance of the original covenant, that the evidence of the assent was inadmissible. The doctrine was here established that it was only after a breach of the sealed agreement, that a parol agreement executed becomes asatisfaction. This principle is fully stated in Cowen Hill'sNotes, (p. 1479,) and the doctrine is, that the parol agreement, being executed, becomes a satisfaction for the breach of the sealed agreement on the familiar grounds ofaccord and satisfaction. To apply the principle of these cases to that now under consideration; if the Woodworths had committed the trespass on the lands of the plaintiffs, and thus broken the sealed agreement, and the plaintiffs had agreed by parol to receive one half the quantity of boards that the lumber in question produced, in lieu of the timber cut, and the Woodworths had delivered the boards to the plaintiffs, that delivery would have been a satisfaction. The case at bar, however, is in no respect like this. The Woodworths plundered the premises of over two thousand dollars worth of timber, and have made no satisfaction, and nothing that can be regarded as a satisfaction, to the plaintiffs. The transfer of the indorsement from one contract to the other, at the request and for the benefit of the Woodworths, was no advantage to the plaintiffs; and the manufacture of the lumber, and the expenditure of *Page 297 labor and money on it, for their own benefit, was nosatisfaction to the plaintiffs for the loss of their timber or for the breach of the sealed agreement in the commission of the trespass. It was no satisfaction either in fact or in law. The payment of a part is no consideration for giving up the residue of a demand. (5 John. 271.) In Verplanck v. Wright, (23Wend. 506,) a covenant just like the one in question was held valid, and the breach of it a forfeiture of the estate, which was recovered in ejectment. In Richardson v Evans, (3 Maddock'sR. 118,) a lessee was bound not to assign his lease without a written license. The lessor consented, by parol, that he might assign to the plaintiff, and agreed to ratify the assignment. On a bill filed by the plaintiff against the lessor, to compel the lessor to perform his agreement, alleging some circumstances offraud which he failed to prove, Sir John Leach, vice chancellor, dismissed the bill, saying that no relief could be grantedagainst such a covenant in equity any more than at law, unless the defendant should prove fraud on the part of the lessor, and that the plaintiff relying on the parol consent, had incurred some loss or damage. Now two things are apparent from this decision; first, that at law there is no relief for a party who has acted on a parol license, when he had agreed under seal that nothing but a written one should confer any authority; andsecondly, that equity will give no relief, unless circumstances of fraud in addition to a consent by parol, are proved; so that in the case at bar, (there being no satisfaction of the breach after it had occurred,) the defendant can have no relief at law.Roe v. Harrison, (2 T.R. 425,) was a case in a court of law, where a tenant had assigned a lease, notwithstanding a covenant not to assign except by virtue of a written license, and an ejectment was brought for the forfeiture incurred by the assignment. The defendant set up a parol license to let a part of the premises, which, it was contended, waived the forfeiture, as to the whole, and authorities were cited on that point. Buller, J. remarked, "This case does not come within the authorities, for "here is no legal consent to let any part of the premises." *Page 298 Unless these cases are to be overthrown, I see no defense in an action at law growing out of the facts on which the defendant relies.
II. Independently of the stipulation providing that the license should be of no validity unless in writing, the license itself is in direct violation of the statute of frauds, and is utterlyvoid for that reason. And that, whether the license be executedor not. At law, the license is void, and cannot be set up, even when executed, in a suit brought for the doing of the act in pursuance of the license. The party must seek his relief in equity on the ground of part performance.
(1.) The license in this case to cut seven hundred thousand feet of growing timber, was a license, transferring to the Woodworths that amount of the real property of the plaintiffs, or, if there was a consideration for the license, then it was a parol contract for the sale of about one third in value of the lot in question. The growing trees were real estate, and were the most valuable part of the real estate, contracted to be sold by the plaintiffs to the Woodworths: and the title to this real estate could not be changed by cutting and removing it without any legal right. It still remained the property of the plaintiffs in its altered condition, and the legal right of the plaintiffs to control it for all the purposes of property remained unaltered. A grant of growing wood is a grant of real estate, and is within the statute of frauds. See many cases collected in the first volume of Hilliard's Abridgment of the law relating to real property, (1 Hil.pp. 6, 7.) In Green v.Armstrong, (1 Denio, 550,) it is held in an elaborate judgment delivered by Mr. Justice Beardsley, that an agreement for the sale of growing trees, with a right to enter on the land at a future time and remove them, is a contract for the sale ofan interest in land, and to be valid must be in writing. InMoore v. Wait, (3 Wend. 104,) it was decided that a person contracting to purchase, with a right of entry and occupancy, had a right to occupy the land for agricultural purposes, but that he had no right to cut timber except for the purpose of cultivation; and that such timber, when *Page 299 cut, becomes the personal property of the owners of theinheritance, who could maintain trover for it against any one inpossession of it, even though he was a bona fide purchaser underthe occupant. It follows, then, that if the parol license under consideration, was in law a sale of real estate, then the timber, when cut, was cut without any legal right, and remained the property of the owner of the land, who might bring trover for the conversion of it. So far, the rights of these parties would seem to be entirely clear. But the ingenious counsel for the defendant has advanced a proposition, plausible on its face, and apparently quite equitable, viz. that a license executed, like the one in the case before the court, cannot be revoked, and constitutes a good defense in an action at law. But,
(2.) This defense resting on an executed license, is applied by the authorities solely to a license, which is not within the statute of frauds. The following cases; Webb v. Paternoster, (Palmer, 71,) a license to stack hay on another man's land:Wood v. Lake, (Sayer, 3,) a license to stack coal on another's land for seven years; Winter v. Brockwell, (8East. 108,) a license to erect a skylight on an area on another's land, by which a window of plaintiffs was darkened;Taylor v. Waters, (7 Taunton, 374,) a license to enter an opera house by virtue of a silver ticket purchased of a former owner of the house; Rerick v. Kern, (14 Serg. Rawle, 267,) a license to turn a water course; Liggins v. Inge, (7Bingham, 682,) a license to erect a weir; are the principal authorities, in which it has been held that a license executed was not revocable; and it was so held because they were regarded as cases of a license strictly speaking, not conveying aninterest in lands. I cite the language of Gibbs, Ch. J. inTaylor v. Waters to show what views the court entertained in holding these licenses irrevocable. After reviewing the previous cases the learned chief justice says, "these cases abundantly prove that a license to enjoy a beneficial "privilege on land, may be granted without deed; and "notwithstanding the statute of frauds, without writing. What "the plaintiff claims, is a license of this description, and not an *Page 300 "intersst in lands. Gourgas paid a valuable consideration to "Taylor, for these tickets." In Mumford v. Whitney, (15Wend. 380,) Ch. Justice Savage reviews the previous cases, and declares that they are not all reconcilable, and he will not undertake to reconcile them. But, he says, "they all agree in "this, that any permanent interest in the land itself cannot be "transferred, except by writing. Much of the discrepancy may "have arisen from the different ideas attached to the word "license. If we understand it as Chancellor Kent defines it, "it seems to me there can be no difficulty. It is an authority "to do a particular act upon another's land; is founded in personal "confidence, and is not assignable. For example, A. "agrees with B. that B. may hunt or fish on his, A.'s, land; A. "thereby gives B. a license for that purpose. This gives B. no "interest in the land; he cannot authorize any other person to "go upon the land; it is a personal privilege granted to B. "alone. If, after A. has given his consent, and before B. has "entered upon his land, A. changes his mind, he has a right to "do so, and forbid B. from entering upon his land for the specified "purpose. The license is thus far executory, and may be "revoked at pleasure; if B. afterwards enters, he is a trespasser. "If, however, B. enters before any revocation of the license, the "license is then executed; and it is not competent for A. to "revoke it, and make B. a trespasser." He then speaks of the distinction between such a case and the one he was then considering, which was a license to build the abutment of a dam upon Mumford's land, which he considered a permanent interest inland, and though executed by Whitney at considerable expense, wasvoid, being in violation of the statute of frauds. Now, this decision has ever since been considered as settling the true line of distinction in this state, between those licenses, which beingexecuted, are irrevocable, and those which are within the statute of frauds, and are void at law, whether they have been executed or remain executory. I now propose to state a few of the cases in which licenses have been held void under the statute of frauds, and as furnishing no defense in an action at *Page 301 law, notwithstanding they have been executed at great expense, and a valuable consideration paid for the privilege. The first I shall allude to, is Cook v. Stearns, (11 Mass. R. 536.) The action was trespass for entering the plaintiff's close, and digging up the soil. The defendant pleaded that he was the owner of a mill and dam, near the plaintiff's close, part of the dam having been constructed on the plaintiff's land, by the consent of the owners, and, it being necessary to repair the same, the defendant entered for the purpose of making repairs. The plaintiffs demurred to the plea, assigning for cause that there was no conveyance. For the defendant it was urged, among other things, that there was a license, which being once executed,was not revocable. Parker, Ch. J. delivered the opinion of the court, that the claim of the defendant was for a right to maintain a dam and canal, which were formerly placed there by consent, and to enter at any time to make repairs. This, he says, is an interest in lands, which cannot pass without writing. The counsel for defendant had contended that such a license might be by parol, and that, after it was executed, it could not becountermanded. "This argument," says the learned chief justice, "had some plausibility in it when first stated, but on "mature consideration it seems to have no foundation, in the "principles of law. A license is, technically, an authority to "do some act on the land of another without passing any estate "in the land; but licenses, which in their nature amount to "the granting of an estate for ever so short a time, are not "good without deed. The distinction is obvious. Licenses to do "a particular act do not trench on the policy of the law which "requires that bargains respecting the title or interest in real "estate shall be by deed or in writing." The plea was held bad, on the ground that the interest claimed was not in the nature of a license, but of anestate, or at least an easement in the land, which could not be acquired without writing or prescription. In Fentinam v.Smith, (4 East, 108,) a parol license was granted to make a tunnel through defendant's land to convey water to plaintiffs' mill. The plaintiffs had agreed for the consideration *Page 302 of a guinea to allow the tunnel to be made, and even assisted in making it, but there was no conveyance. The guinea was tendered, but the defendant refused to receive it, and diverted the water. Lord Ellenborough said the right claimed was an interest inland, and could not pass without deed. In Hewlins v.Shippam, (5 Barn. Cress. 210,) the defendant and his landlord granted by parol, a right to dig a drain through their land, at plaintiff's expense, to discharge the foul and refuse waters from an inn, and a suit was brought against the defendant for obstructing the drain, and it was held by the court that the action would not lie, notwithstanding the license wasexecuted, as the interest conveyed was an interest in lands. Again, in the case of Bryan v. Whistler, (8 Barn. Cres. 288,) an action was brought against the rector of a church for opening a vault and burying a corpse in it. The vault had been constructed by the plaintiff, by virtue of an agreement with the defendant, and on paying him £ 20 for the privilege. In consideration of which the defendant had agreed that the plaintiff should have the exclusive use of the vault. The plaintiff's counsel relied on the cases above cited, where a license had been held irrevocable after it was executed, but the court, on a rule to show cause, ordered a nonsuit to be entered, on the ground that the right claimed was either an easement oran interest in lands, and in either case could not pass without writing. In Cocker v. Cowper, (1 Cr. Mees. Ros. 418,) it was decided that a verbal license was not sufficient to convey an easement in another's land, and that it was revocable, thoughacted upon. The same decision was made in Bird v. Higginson, (4 Nev. Man. 505.) In the case of Miller v. The Auburn Syracuse Railroad Co. (6 Hill, 61,) an action was brought to recover damages for erecting and continuing an embankment on Garden-street, in Auburn, whereby the plaintiff was disturbed in his ingress upon, and egress from certain of his lots lying on the north and south sides of the street. The defendants offered to prove that the embankment and railroad were made under a parol license of the plaintiff. This *Page 303 evidence was excluded, and a motion for a new trial was made and refused. COWEN, J. in delivering the opinion of the court says, "If the plaintiff was to be considered as the owner of the "road, there can be no doubt that he was incapable of granting "by parol, the right claimed by the defendants. It would be "a right to enter on and occupy his premises by the railway "for an indefinite length of time, without a conveyance sufficient "within the statute of frauds, to convey a freehold," citingMumford v. Whitney, (15 Wend. 380;) Bridges v. Purcell, (1 Dev. Batt. 492;) 1 Ch. Gen. Pr. 336-340. The learned judge then cites the English cases holding a license executed to be irrevocable, to which I have adverted, and says: "These cases evidently let in a verbal distinction, "under which, if retained and made applicable in its full extent, "the statute of frauds would, in many important respects, be "repealed. Parol licensesirrevocable, would be made to pass "a freehold. The well established rule of the common law too, "that easements and other incorporeal hereditaments shall pass "by deed only, would be nearly repealed." He afterwards says, "Many of these cases do conflict with these doctrines, "and have been accordingly much qualified, if not entirely "overruled in the English as well as American courts." I now cite the sixth edition of Kent'sCommentaries, note F. to p. 451, where several other authorities are collected, showing that the tendency is at this time in the English courts to overrule the class of cases to which Wood v.Lake and Taylor v. Waters belong, as irreconcilable with a just construction of the statute of frauds. I also cite Ch. Gen.Pr. (vol. 1, pp. 336 to 340,) to show that in England, at the present day, those cases are regarded as of no authority, and I rely particularly on the language of Sugden, in his Treatiseon Vendors and Purchasers, (8th ed. 745,) where he comments upon, and pointedly condemns the most of this class of cases which obtained for a time in the English courts, as being in the teeth of the statute of frauds, and not to be supported. Now, I beg leave to say, that it never was pretended in England, that a license, which *Page 304 fell within the statute of frauds, could be upheld, notwithstanding it had been executed and a valuable consideration paid for the privilege; but the error of these cases consisted in holding that certain parol licenses, conveying an interest in lands and creating a right to easements, were not within the statute of frauds. In the case before the court, therefore, if it be admitted that a license, under which standing timber to the value of over two thousand dollars has been taken from the premises in question, and the lot then abandoned by the trespassers, did not convey a right to real estate, and that the title to that real estate remains unchanged by the acts of the trespassers, there can be no question respecting the rights of the plaintiffs to hold the judgment they have recovered. But it will be asked, is there no remedy for a party who has proceeded under a parol license, and expended his money and labor on the timber in manufacturing it into lumber? I answer there is no remedy at law, any more than there is in a case where a man purchases a hundred acres of land by contract, and expends a thousand dollars in improvements upon it, and is sued in ejectment by the owner of the legal estate. In both cases he may file his bill in chancery for relief, when that court will see equal and exact justice done to both parties. At law, there is no remedy, and the defendant, before he can have any relief, must seek it at the door of another tribunal.
EDMONDS, J. also delivered a written opinion in favor of affirmance.
Judgment reversed and new trial ordered. *Page 305