THE ATI-OR.NEY GENERAL
OF TEXAS
Honorable Wm. J. Lawson
Secretary of State
Austin, Texas
Dear Sir: Attention: Mr. Frank D. Wear
Opinion No. O-3267
Re: Are persons engaged in the business of
buying and selling growing timber sub-
ject to and required to register under
the provisions of the Texas Real Estate
Dealers License Act?
your recent request for an opinion of this department on
the above stated question has been received.
We quote from your letter as follows:
"This department would appreciate having the
benefit of your opinion as to wheth~eror not persons
engaged in the business of buying and selling of grow-
ing timber aresubject to and required to register under
the provisions of the Texas Real Estate Dealers License
Act, same being H.B. No. 17, Acts of tie 46th Legisla-
ture, Regular Session.
"This department is in receipt of requests for
information from several persons as to whether or not
they are required to register under such Act when en-
gaged in such business.
"It is our understanding that such persons
make a sale of the standing timber before any timber
deed has been executed and while the timber is 2~ part
3f the realt;;. However, we understand that it is
always con:emFlated by scch parties that there will be
a constructive severance at the time of f:7econsumation
3f the transaction and therefore, under the deed the
title :3 tiietixbel;passes as personalty and not as
realt;~."
Generally speaking a considerable bccly of case law has
grown out of t‘heownership of logs and timber, litiration being found in
the field of torts and contracts aM also Crimes. P 24 A.L.R. 316; 73
A,L.R. 842; Tex. Jur. Vol. 28, 362). The word "timber", in its primary ~
mean,ing, is "t‘hatsort of wood which is proper for buildings, or for too-:
utensils, furniture, carriages, fences, ships, an; the like, usually S2~~Y
of felled trees, but sometimes of those standing. (McCauley v. Sta~te,
43 Tex. 374).
H;norable Wm. J. Lawson, Page 2 S-3267 _
Disputes concerning property rights in logs or in standing
timber may involve principles of law which are too numerous to mention.
Growing timber or trees may for one purpose or another have the status
of real property or personal property. (See McVey v. United Timber &
Kaolin Ass'n., 270 S.W. 572; Fidelity Lumber Co. v. Adams, 230 S.W. 177).
A fee simple or absolute estate in timber would seem to have the
characteristics of real property in any legal situatioN. On the other
hand, the interest or ownership which is conditioned upon a cutting and
removal of the trees may have the character or status of real property
for some urposes and personalty for others. (See E.L. Bruce Co. v.
Hannon, 213 S.W. 862; Dunsmore v. Blount-Decker Lumber Co., 198 S.W.
603; Montgomery v. Peach River Lumber Co., 117 S.W. 1061).
We quote from Texas Jurisprudence, Vol. 28, page 369, as
follows:
"'While it is true that standing timber is
generally regarded as part of the realty, yet the owner
may by contract constructively cause a severance, and
for the purpose of a mortgage or sale convert it into
personalty.'" (See Downey v. Dowell, 207 S.W. 585).
We quote from the case of Davis v. Conn, 161, S.W. 33 as
follows:
"There are quite a number of generally re-
ported cases dealing with the sale of growing trees
upon the principal question of whether such sale
operated to pass aninterest in land or to be a sale
of chattels only. By one line of the cases the
question is answered that according to the facts
therein the sale of growing trees operates to be a
sale of an interest in land. By the other line of
cases a sale of growing trees is held under the facts
therein to be a sale of chattels only. And the rea-
sons and principles determining the ruling in such
cases upon the effect that should be ascribed to the
sale could well be considered as furnishing a criterion
to determine the effect to be given the sale in this
case. A number of the cases rath,erturn on the ooint
that in them the agreement of the parties was noi
made with a view to the removal and severance of the
trees from the soil, but their remaining thereon;
and standing trees being legally regarded as part and
parcel of the land in which t;heyme woted and from
which they draw their support, therefore, in that
sense, t:hesale passed an interest to real estate.
/ And the reascsnfor the hclding in a number of cases
that a sale oi'gr9Jing trees is a Sale Gf Chattels
Oilly is that in the contemplation and agreement 2f the
parties in suciiparticular cases the sale was made in
prospect of the severance and removal of the trees
from the land, and not to remain on the land, and
therefore, the sale was intended and operated to be
a sale as chattels only."
We quote as follows:
Honorable Wm. J. Lawson, Page 3 G-3267
"It is quite well settled by the cases that
growing trees may by the agreement of the parties be
severed, in contemplation of law, from the land, and
be dealt with in the contract as personaty removable
immediatelv or timely without an actual severance at
the time."- (Davis v, Conn, 161 S.W. 39; hmey V.
Dowell, 207 S.W. 585:).
You state in your letter that 'we understand that it is
always contemplated by such parties that there will be a constructive
severance at the time of the consumation of the transaction." Such being
the case, as above stated, it is well settled that growing trees may by
agreement of the parties be severed in contemplation of law, from the
land, and be dealt with in contract as personalty removable immediately
or timely without an actual severance at the time.
After carefully considering "The Real Estate Dealers'
License Act" and the definition of the terms real estate dealer and real
estate salesman as defined therein in connection with the Act as whole
and the facts stated in your letter, together with the above mentioned
authorities, we respectfully answer the above stated question in the
negative.
Trusting that the foregoing fully answers your inquiry,
we are
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/Ardell Williams
Ardell Williams
Assistant
AW:RS:wc
APPROVED APR 3, 1941
s/ Gerald C. Mann
ATTORNEY GENERAL 0 F TEXAS
Approved Opinion Committee by s/SW??Ch~airnan
Tnis opinion Considered and Approved in Limited Conference