The opinion of the court was delivered by
Steele, J,By a long series of decisions in this state, if the vendee permits personal property, which he has purchased, to remain in the vendor’s possession, the sale is held to be void as to the vendor’s attaching creditors whether it is in fact fraudulent or not. The rule is limited to personal property. The question in issue here is upon the application of this general rule to this case. The plaintiff sues for the value of sixty-seven cords of wood which the defendant, as an officer, attached upon a writ against one Nutting from whom the plaintiff acquired the title upon which he relies. The officer found the wood upon Nutting’s land where it was cut. The verdict established that the sale from Nutting to the plaintiff was of one hundred cords of wood in the trees standing, and that the contract under which Nutting was employed by the plaintiff to procure and did procure the wood to be cut by his hired man was independent of the sale and subsequent to it.
The plaintiff was to commence upon one side of two specified pieces of land and take all the trees clean excepting the oak and ash until he should get his one hundred cords — “ the quantity to be ascertained by piling and measuring as it was cut.” It was cut, piled and measured by Nutting’s man, and the plaintiff drew away a part of it that winter, and on account of the snow leaving earlier than usual failed to draw away the remainder, as contemplated, that season, and it was attached, the following summer, by the defendant.
No question is made but the wood became in fact the plaintiff’s property, but the question is whether he held it by a title which with *687out removal of the property from Nutting’s land, was valid against Nutting’s attaching creditors.
The plaintiff claims in argument that the inaccessibility, by team, in the summer time, of the mountain where the wood was cut — the sudden and unexpected leaving of the snow and the difficulty of removing so heavy an article, bring the case under the rule which obviates the necessity of a substantial and visible change of possession when such a change is impracticable. The question of impracticability does not appear to have been passed upon in the court below and therefore cannot be revised here.
It is also claimed that the contract is for an interest in land and therefore without the rule which requires a change of possession. Whether the purchase was a real or a personal contract is a question involving considerable difficulty and has been thoroughly examined and argued by the counsel. It was held in Buck v. Pickwell, 27 Vt. 158, that in an action of trespass for cutting and removing trees, where the plaintiff’s title to the trees was derived from a parol contract of purchase of the land-owner, made twenty-one or twenty-two years before, of all the timber on certain land to be taken off at any time the vendee should like, though it was expected by the vendor that it would be taken in ten years, the purchase was of an interest in land and within the statute of frauds.
Although there is great conflict in the English cases, and a different rule may seem to have obtained some approval in Massachusetts and some other states, — see Claflin v. Carpenter, 4 Met. 580—still we are satisfied that this decision, to the extent of the matter decided, is in accordance with the majority of the decided cases and founded upon correct principle. But a contract for the future growth of trees and the beneficial use of land for that purpose for a series of years, or during the pleasure of the vendee, may perhaps be distinguished from an ordinary purchase of stumpage by the foot or cord in contemplation of an early removal or delivery as chattels.
See Browne’s Statutes of Frauds, 24if, 255, 257, where this distinction is approved and nearly all the cases upon the subject cited and many of them discussed. Such a distinction is made by Lord Abinger in Rodwell v. Phillips, 9 Meeson and Welsby, 505. In New York the contract has been held to be within the Statute of Frauds, *688but when duly made the trees are held to become the vendee’s “ personal property, in contemplation of law, severed from the land. Warren v. Leland, 2 Barb. 620. In the case cited Paige, J. qualifies the doctrine as follows : “ These observations are to be deemed applicable to a conveyance of the growing trees, standing on the land at the time of the conveyance, and not to a conveyance of an interest in any future trees which may grow on the land which might embrace an exclusive interest in the soil so far as may be necessary for the support and nourishment of the trees ; and these observations ought perhaps also to be qualified by an application of them to a conveyance of growing trees in prospect of their separation from the soil within a reasonable time.”
What rule may be ultimately adopted in this state upon this subject it is not our purpose to anticipate at this time. This case does not, we think, necessarily require a decision of the question whether the purchase of growing trees is, under these circumstances, a real or personal contract, because a change of possession of growing trees by removal is impracticable and would therefore be as unnecessary in order to perfect the vendee’s title against creditors if regarded as personal chattels as if regarded as an interest in land. Sanborn v. Kittredge, 20 Vt. 638-9; Hutchins v. Gilchrist, 22 Vt. 82; Birge v. Edgerton, 28 Vt. 291.
In this case “ the quantity was to be ascertained by piling and measuring as it was cut,” and it is urged that while anything remained to be done the property did not absolutely pass to the vendee ; and as the measuring was not to be done until the trees were cut into wood, the plaintiff did not obtain title until it- thus became movable property, and then obtaining it of Nutting, the wood could not be allowed to remain on Nutting’s land without liability for Nutting’s debt; that the contract was substantially the same as if made simply for one hundred cords of wood already cut. But the purchase was in terms “ of one hundred cords of wood in the trees standing.” It implied permission to enter upon the land and cut it out of the trees It was not a contract for cord wood, but a contract giving the vendee the right to make cord wood — to manufacture it of the growing trees.
- It was in contemplation that the vendee should, by cutting the *689trees and making them into wood, expend money and labor and entirely change the character and condition of the property, and he should have permission to do this up to the amount of one hundred cords.
Like the sale of a right to cut marble from a quarry or dig ore from a mine, the labor of removal becomes a leading element of its value, and as fast as it is removed it is the purchaser’s, severed from the vendor’s property.
In any view, as fast as the trees were cut, in pursuance of the contract of sale, we think, they became, until the contract was filled, the property of the plaintiff, exclusively, — accepted by him and under his control, and in his possession. As movable property they were never owned or possessed by the vendor. £lt is not necessary that the article should be measured before the sale is complete, if it is the intention of the parties that the property shall pass before that time and that the amount shall be subsequently determined by a measurement of the product of the article when changed in form. Riddle v. Varnum, 20 Pick. 280; 1 Parsons’ Contracts, p. 441; Hawes v. Watson, 2 Barn & Cress., 540; Macomber v. Parker, 13 Pick. 175.
In Douglas v. Shumway, 13 Gray, 502, the court held the vendor had no lien for the purchase money upon the wood made of trees he had sold, though still on his land. “ The contract of sale, ” says Bigelow, J. “ contemplated that the vendee should expend labor and money in felling the trees and preparing the wood for market, and the case finds that the wood had been cut by the vendee and a portion thereof sold by him and hauled off the land.
The vendee by himself and his agents had taken it into actual possession and incorporated with it the labor bestowed by him in preparing it for sale. There was therefore such change of possession from the vendor to the vendee, as to defeat any right of lien in the vendor.”
In order to make a removal of the wood in this case necessary, there must have been some time when as against the vendee the vendor owned it and had it in his possession and control and not merely upon his land.
*690That condition of things we think never existed.
The character of this transaction is not altered by the plaintiff’s employing Nutting to manufacture the wood. Nutting was the plaintiff’s servant, and as the property was immovable the plaintiff might safely employ Nutting to make it moveable and Nutting would not thereby become seized of any property in it against the employer.
The judgment is affirmed.