that growing trees may be conveyed by deed, and are not chattels so as to require a delivery to perfect the assignment.

In Penhallon v. Dwight, 7 Mass. 34, corn ripe and fit to be cut held subject to execution as a chattel. See, however, as to the point of maturity, Craddock v. Riddlesberger, 2 Dana 206. In Bowman v. Cann, 8 Ind. 58, a parol agreement to sell and deliver at sixty dollars per ton whatever broom corn should be raised in 1853 on a certain twenty-five acres, held to be a sale of goods, and for that reason within the Statute of Frauds: Watts v. Friend cited. In Pitkin v. Noyes, 48 N. H. 294, an agreement to raise three acres of potatoes and deliver them to the other party at so much per bushel, held to be a contract for chattels. See, upon the question of annual crops being personalty, Stambaugh v. Yeates, 2 Rawle 161; Myers v. White, 1 Id. 356, and the Bank of Pennsylvania v. Wise, 3 Watts 406.

In Cutler v. Pope, 1 Shep. 379, it was held that a contract for the sale of grass already grown and in a condition to be cut was not within the Statute of Frauds: Crosby v. Wadsworth criticised; Parker v. Staniland approved. In The Bank v. Gary, 1 Barb. 544, growing trees, fruits and grass, being parcel of the land, were held to be within the Statute of Frauds, and that they could not be sold or conveyed by parol. The distinction was made between yearly crops and those growing spontaneously and permanently, it being admitted that grass, e. g., might be severed by a writing, and then, though still uncut, it would be a chattel. The Bank v. Gary was the case of an execution issued on growing grass as a chattel, with the parol consent of the defendant in the execution held not good. Crosby v. Wadsworth, Evans v. Roberts, Jones v. Flint, and Teal v. Auty, were considered. See, however, Craddock v. Riddlesberger, 2 Dana 206. Huff v McCauley, 53 Penna. St. 210, citing Crosby v. Wadsworth, and Yeakle v. Jacobs, 33 Penna. St. 376, holds sales of growing timber, not made with a view to immediate severance, within the Statute of Frauds. A contract for the sale of growing trees is within the statute: Mirzell v. Burnett, 4 Jones Law Rep. In Claflin v. Carpenter, 4 Metc. 582 (see also Scovell v. Boxall), it was held that a contract for the sale of standing wood or timber, to be cut and severed from the freehold by the vendee, does not convey any interest in the land. A contract for wood to be cut and paid for at so much per cord is not within the Statute of Frauds: Killmore v. Howlett,

48 N. Y. 569. In Smith v. Bryan, 5 Md. 141, A. sold B. trees growing on the land of the former at a specific price; B. cut and removed some and resold the remainder to A.: Held to be a sale of goods, and that as to the portion resold delivery was perfected, citing 1 Greenl. on Evid., § 271. In Warren v. Leland, 2 Barb. 613, it was said that growing trees, except where there is a special ownership in the trees apart from the land, belong to the realty, and a contract concerning them is within the Statute of Frauds. In Byasse v. Reese, 4 Metc. (Ky.) 372, a sale of growing trees in contemplation of their immediate separation, held not to be within the Statute of Frauds, citing 1 Greenl. on Evid., § 271. In this case no time for the removal of the trees was fixed, but the vendee marked a certain number and had begun cutting them. In Stephens v. Santee, 51 Barb. 545, A. agreed to cut ties from his own land and deliver them to B. at so much per tie; B. furnished the money as the work progressed, and the timber was to be his as soon as cut. The ties were cut and hauled to the land of a third person, and there verbally turned over to B. as his property : Held, that they could not be levied on as A.'s property, and that the Statute of Frauds did not apply to such a contract. The rule was declared to be that where work upon the subject-matter of the sale is to be done for the vendee, the case is taken out of the statute. In Nettleton v. Sikes, 8 Metc. 35, an agreement by an owner of land that another may cut down trees on the land, peel them, and take the bark to his own use, held not to be within the Statute of Frauds. In Hawell v. Miller, 35 Miss. 700, the sale of growing trees with the right to enter and cut is within the Statute of Frauds. In Kingsley v. Holbrook, 45 N. H. 318, the law in Massachusetts and Maine, citing 1 Greenl. on Evid., § 271, said to be that sales of growing trees are not within the statute, unless it is shown that they (the trees) were left on the land to derive benefit from it, or unless the vendee was to have a beneficial interest in the land. The court, however, held the presumption to be the other way, and that the trees were realty, if the vendee had the right at a future time, whether definite or indefinite, to enter and take them. In Buck v. Pickwell, 27 Vt. 158, an agreement to sell all the timber on certain land to be taken off at the vendee's pleasure, held to be within the Statute of Frauds: Smith v. Surman, and Sale v. Seeley, distinguished, and a number of cases considered. Growing trees not nursery ones are not a subject of execution : Breese 221. In

Fitch v. Burr, 38 Vt. 683, approving Buck v. Pickwell, it was said that a contract for the future growth of trees and the beneficial use of the land for that purpose for a series of years, or during the pleasure of the vendee, may perhaps be distinguished from an ordinary purchase of stumpage by the foot or cord in contemplation of an early removal or delivery as chattels. In Ellison v. Brigham, 38 Vt. 66, a contract by the defendant to cut down timber on certain land and deliver it to the plaintiff, who was to pay for it at so much per cord, was held to be within the Statute of Frauds, and the court, citing Smith v. Surman, considered the agreement as one for the delivery of chattels and not for work and labor done. In the arguments of counsel a great many cases will be found cited. See Whitmarsh v. Walker, 1 Metc. 313. In Erskine v. Plummer, 7 Greenl. 451, semble, that a sale of growing trees to be cut and carried away is not within the Statute of Frauds; but otherwise, as to such a sale, with an indefinite time to the purchaser to take away the timber: the law of Connecticut said to hold even the bricks, &c., of a house to be severed to be personalty. In White v. Foster, 102 Mass. 375, a grant of a present estate in trees while growing, held to be within the Statute of Frauds; but otherwise as to a mere right, either definite or unlimited, as to the time to enter and cut with a title to the property when it becomes a chattel. In Pattison's Appeal, 61 Penna. 296, a sale of growing timber to be taken off at discretion, held to be within the Statute of Frauds. In Caine v. McGuire, 13 B. Mon. 340, a sale of growing timber with a view to immediate severance, held not to be within the statute: Greenl. Ev., § 271, approved. In Green v. Armstrong, 1 Denio 552, a contract for twenty-two growing trees, to be paid for at 18. 6d. per saw-log, to be cut and carried away any time within twenty years, was held to be within the Statute of Frauds. In Bennett v. Scott, 18 Barb. 347, A. and B. agreed that the former should cut wood on the land of the latter and should have till the next winter to carry it away: the Statute of Frauds held to apply. An existing right in a third person to cut and remove trees is an encumbrance on land so as to give rise to a breach of a covenant to convey free of encumbrance land with regard to which such a right exists: Spurr v. Andrew, 6 Allen 420.

HENRY REED.

RECENT AMERICAN

DECISIONS.

Supreme Court of the United States.

RICHARD L. WALLACH ET AL. . JOHN VAN RISWICE.

Under the Act of Congress of July 17th 1862, for the confiscation of enemy's property, a seizure and sale of land in which the owner, a participant in the rebellion, had an equity of redemption, passed his whole title and left no estate in him which he could subsequently convey.

Nor does the joint resolution of Congress of the same date, limiting the forfeiture to the offender's life, change the effect of the act. What is forfeited is not a technical life-estate, but the entire estate during a limited period.

The property of W. was mortgaged by him to R., and subsequently was confiscated and sold by the United States in 1863, under the Act of July 17th 1862, R. becoming the purchaser. In 1866, W. and wife made a deed of the property in fee simple to R., with covenants of general warranty. In 1872, W. having died, his heirs filed a bill against R., to redeem as against the mortgage, and to have the deed of W. in 1866 declared void: Held, that the bill would lie.

APPEAL from the Supreme Court of the District of Columbia. The complainants were children and heirs-at-law of Charles S. Wallach, who was an officer in the Confederate army during the late rebellion. While thus in the Confederate service, his real estate, situate in the city of Washington, was seized by order of the President, under the Confiscation Act of July 17th 1862, and a libel for its condemnation was duly filed. The lot of ground, respecting which the present controversy arose, was condemned as forfeited to the United States on the 29th day of July 1863, and on the 9th day of September next following, it was sold under a writ of venditioni exponas, the defendant, Van Riswick, becoming the purchaser. Prior to the seizure, the lot had been conveyed by Charles S. Wallach in trust to secure the payment of a promissory note for five thousand dollars which he had borrowed, and at the time of the seizure a portion of this debt remained unpaid and due to the defendant, to whom the note and the security of the deed of trust had been assigned. Wallach's interest in the property was, therefore, an equity of redemption, and by the confiscation sale the purchaser acquired that interest, and held it with the security of the deed of trust given to protect the payment of the promissory note. On the 3d of February 1866, Wallach having returned to Washington, made a deed purporting to convey the lot in fee simple with covenants of general warranty to Van

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Riswick, the purchaser at the confiscation sale. His wife joined with him in the deed.

So the case stood until February 3d 1872, when Wallach died. The complainants then filed this bill, claiming that after the seizure, condemnation and sale of the land, as the property of a public enemy engaged in the war of the rebellion, nothing remained in him that could be the subject of sale or conveyance; consequently that nothing passed by the deed from Wallach and wife, and that they, being his heirs, had, upon his death, an estate in the land and a right to redeem, and to have the conveyance of their father to Van Riswick declared to be no bar to their redemption. The relief sought was redemption of the deed of trust, discovery (particularly of the amount remaining due upon Charles S. Wallach's note), an account of the rents and profits of the land since the death of Wallach, a decree that his deed of February 3d 1866 is of no effect as against the plaintiffs, a decree for delivery of possession of the lot, and general relief.

To this bill the defendant, Van Riswick, demurred generally, and the court below sustained the demurrer and dismissed the bill. Hence this appeal.

The opinion of the court was delivered by

STRONG, J.-The formal objections to the bill deserve but a passing notice. It is not, we think, multifarious, and all persons are made parties to it who can be concluded or affected by any decree that may be made; all persons who have an interest in the subject-matter of the controversy. The main question raised by the demurrer, and that which has been principally argued, is whether, after an adjudicated forfeiture and sale of an enemy's land under the Confiscation Act of Congress of July 17th 1862, and the joint resolution of even date therewith, there is left in him any interest which he can convey by deed.

The Act of July 17th 1862 is an act for the confiscation of enemies' property. Its purpose, as well as its justification, was to strengthen the government and to enfeeble the public enemy by taking from the adherents of that enemy the power to use their property in aid of the hostile cause: Miller v. United States, 11 Wallace 268. With such a purpose, it is incredible that Congress, while providing for the confiscation of an enemy's land, intended to leave in that enemy a vested interest therein, which he might