370 HARVARD LAW REVIEW. the parties f but upon the legal character oj the subject of the contract^ which ^ in the case of growing timber, is that of realty." This rule certainly has the merit of simplicity and ease of appli- cation, avoiding, as it does, an inquiry as to the precise time the trees are to stand before they are to be cut by the buyer, and whether such time is or is not reasonable. It has many respect- able authorities in its support.^ 4. On the other hand, there is much authority as well as reason for holding that if either expressly or by a fair construction of the contract, the trees are forthwith or within a reasonable time to be cut and severed from the realty and thus made personal property (no matter by which party), and are not to gain additional growth and size from the soil, it is not a sale of any " interest in land " and not within the Statute. The earliest announcement of this doctrine seems to be in i Ld. Raymond, 182 (1697), and where it is thus stated: " Treby, C. J., reported to the other Justices that it was a question before him in a trial at nisi prius at Guildhall, whether the sale of timber grow- ing upon the land ought to be in writing by the Statute of Frauds, or might be by parol. And he was of opinion and gave the rule accordingly, that it might be by parol, because it is but a bare chat- tel. And to his opinion Powell, J., agreed." This report is rather indefinite as to the terms and nature of the sale, and perhaps could not be pressed into supporting sales of trees to stand a long time on the vendor's land. Maine seems to have first adopted this view in America, for in Erskine v. Plummer,^ it was held that a sale of timber by parol to be cut and carried away by the purchaser " within a reasonable time, or as soon as it can conveniently be done," is not within the Statute. Banton v. Shorey,^ is similar. So in Whitmarsh v. Walker,* the defendant orally sold the plain- tiff two thousand mulberry-trees then growing in his nursery, which were " raised to be sold and transplanted," and which were to be delivered on the ground by the defendant when called for. The defendant refused to deliver, and the action was for a breach 1 See Slocum v. Seymour, 36 N. J. L. 138; Owens v. Lewis, 46 Ind. 488, where the subject is elaborately considered, and is approved in Armstrong v. Lawson, 73 Ind. 500. And see Coody v. The Gress Lumber Co., 82 Ga. 798 ; Daniels v. Bailey, 43 Wis. 566 ; Knox v. Haralson, 2 Tenn. Ch. R. 237 ; Summers v. Cook, 28 Grant, Ch. 179; Rhodes v. Baker, i Ir. Com. L. R. 488 (1851), and many other cases. 2 7 Greenl. 447 (1831). 8 77 Me. 48 (1885). * I Met. 313 (1840).
