Untitled Texas Attorney General Opinion

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