Suffern v. Townsend — 9 Johns. 35

Majority

p. 35

A. & J. Suffern against Townsend.

ALBANY,

Jan. 1812.

Headnote

An agree~ ment, for the purchase o~ land,does not, of itself, aSnOunt to a license to the party agree~ ing to purchase, to enter on the land;aricl a1i.~ cense to enter does not imply a peJmis~ sion to cut and consume the timber. And where a person, after a perot agree~ ment for the purchase of hod, entered. and cut timber, and the agreement was after-wards rescinded by him; it was held that he was liable as a trespasser.

THIS was an action of trespass quare clausu~m fregit, and for cutting and carrying away trees, &c. Plea, not guilty, with notice that the defendant would give in evidence, at the trial, a license to cut and carry away the timber and treeS, &c.

The cause was tried, at the Orange circuit, on the 12th of September, 1811. The plaintiff having proved the entering, and cutting, and carrying away the trees, &c. the defendant offered to give in evidence, in bar of the plaintiff's action, that at the time of the trespass complained of, lie was in possession of the locus in quo, by virtue of aparol agreement, for the purchase of the lot, on which the trespass was alleged to be committed. That this agree~ ment was made in the autunrn of 1809, immediately after which the defendant entered, as owner, and the plaintiff showed the lines and bounds of the lot. A deed was to be executed in the following spring. In March, 1810, when the lot was surveyed, the defendant, finding that it did not include all the land he supposed, abandoned the lot, a~d informed the plaintiff that he would not take it, on account of the misrepresentation as to the bounds. The plaintift accordingly, sold it to another person in Max,, 1811. The alleged trespass was committed while the defendant was so in possession of the lot.

This evidence was objected to, as not constituting a bar to the plaintiff’s action, and was overruled by the judge, and the jury, under his direction, found a verdict for the plaintiffs.

A motion was made to set aside the verdict, and for a new trial.

Fisk, for the defendant, contended, that the evidence offered at the trial ought to have been received.

Though the parol agreement was void as to the purchase, under the statute of frauds, yet it was good evidence of a license to enter. A license need not be in writing. A license to, enter is a good plea in bar to an action of

p. 36

trespass quare clausum fregit. He cited 5 Comyns' Dig. 791. 2 Term Rep. 166. 6 Johns. Rep. 46 . 7 Johns. Rep. 1 .

J. Duer, contra, insisted, that a parol agreement for a purchase did not imply a license to enter on the land. Suppose even an agreement for a purchase in writing, yet if it does not contain an express permission to enter, it will not give such license, by implication. Again, if the plaintiff had expressly consented to let the defendant enter, on condition that he would become a purchaser, yet if the defendant, afterwards, refused to purchase, he would, by breach of the condition, become a trespasser ah initio.

The defence set up as a bar to the action was properly overruled. The agreement to purchase and convey did not, of itself, amount to a license to enter. It was a mere executory agreement. And even if a license to enter had been shown, it would not have been sufficient, without showing a further license to cut and consume the timber. The one license does by no means imply the other. The defendant could not have pretended to have been in possession, in any higher character than a tenant at will, as the agreement for the purchase of the premises was by parol, and if a tenant at will cuts timber, it is trespass. The matter offered as a defence was altogether insufficient.

Motion deniedi