Starks v. Garver Lumber Manufacturing Co.

ROBERTSON, P. J. About June 17, 1911, the plaintiff succeeded to the rights of another party to a verbal contract for the purchase of all timber on one hundred acres of land in the county of New Madrid, for which he paid $35. Upon acquiring this interest in the .contract of purchase, he interviewed the then owner -of the land who gave him assurances that he should have until the first day of the succeeding January in which to remove the timber. All of plaintiff’s negotiations, both in acquiring the interest in the contract and making the arrangement with the land owner, were verbal. At the time of this purchase the plaintiff had rented and was residing on and farming the cleared portion of the land, and after acquiring the interest in the contract he resumed his work some time during the next month. On July 31, 1911, the defendant purchased the land, which was conveyed to him by a warranty deed in which there was no exception of the timber. The deed was not recorded until August 10, 1911. At the time of the purchase by defendant the plaintiff had cut and hauled away about ten thousand feet of the timber and about $500' worth, 4 4 on the market,” of timber was left standing. Soon thereafter the defendant replevied the logs already removed and so threatened the plaintiff and his employees that they discontinued the work of cutting timber. The defendant abandoned the replevin suit and this action was brought by the plaintiff in the circuit court in two counts, the first alleging conversion by defendant [244] of the logs cut and removed from the land and the second count seeking to recover damages for the refusal of the defendant to .permit plaintiff to remove the timber that was left standing. Defendant answered by a general denial, a plea setting up the Statute of Frauds and averring that at the time of the alleged conversion it was the owner of the trees and that the plaintiff had no right, title or interest therein. The plaintiff filed a reply and upon a trial to a jury a verdict was returned in favor of the plaintiff on the first count for $250 and on the second for $500. The defendant has appealed. Growing trees are a part of the realty and contracts relative thereto must be in writing conformably to the requirements of Section 2783, Revised Statutes of 1909. [Lead Co. v. White, 106 Mo. App. 222, 230, 80 S. W. 356.] As to the first cause of action alleged in the plaintiff’s petition and upon which the verdict is entered, we are of the opinion that no reversible error was committed by the trial court that involves the judgment on that count, because at the time the trees were removed the defendant had not purchased the land and the testimony shows that the trees were severed from the land and removed with the consent of the then owner of the land and were in possession of the plaintiff 'before the purchase by defendant; consequently, the Statute of Frauds could not be invoked by the defendant to defeat the plaintiff’s claim for this timber. As to the second count in plaintiff’s petition, we are of the opinion that the judgment thereon must be reversed. Assuming that the defendant when it purchased the land had notice of plaintiff’s claim, yet, according to plaintiff’s own testimony, even though he was only in possession of the tillable portion of the land under his farm lease at the time he claims to have succeeded to the contract for the timber, he was [245] then also cutting and removing the timber either as a trespasser or with the consent of the landowner; consequently, even though he had paid the purchase price the possession of the timber which he then had was not referable to his contract of purchase, which is one of the essentials to take his contract out of the Statute of Frauds. A continuance of such possession, as has been noted, is not sufficient (Emmel v. Hayes, 102 Mo. 186, 194, et seq., 14 S. W. 209), and the case at bar is distinguishable from cases where it is held that full performance on the purchaser’s part and the delivery of possession to him by the landowner takes his contract out of the statute and justified an action at law thereon. [Johnson v. Reading, 36 Mo. App. 306, 317; Nally v. Reading, 107 Mo. 350, 355, 17 S. W. 978; Marks v. Davis, 72 Mo. App. 557; Bless v. Jenkins, 129 Mo. 647, 657, 31 S. W. 938.] What we have stated in this case dispenses with the necessity of a review of the authorities cited by the appellant, some of which are upon the question of the effect that possession has as notice to the vendee of the rights of the parties so in possession, but those cases are not applicable and have no bearing on the case according to our disposition of it for the reason that the rights of the plaintiff were not sufficient to defeat the title the defendant acquired and were not such rights as could be enforced even against the vendor. The other- cases cited in behalf of the plaintiff are distinguishable from the case at bar because here, as we have held, the plaintiff had no such possession as removed the case from the effect of the Statute of Frauds. The judgment of the circuit court is affirmed as to the first count and reversed as to the second and the cause remanded with directions to the circuit court to modify the judgment accordingly. Sturgis, J., concurs. Farrington, J., concurs in result.