Opinion
4 Div. 757.
January 16, 1919.
Appeal from Circuit Court, Covington County; A. B. Foster, Judge.
J. A. Carnley, of Elba, for appellants.
J. D. Bailey, of Florala, and Jones, Thomas Field, of Montgomery, for appellee.
It is a settled principle of law in this state that a parol sale of standing timber, coupled with a license to enter and cut and remove it, is void under the statute of frauds (Code, § 4289), and is unenforceable in so far as it remains unexecuted. Cobbey-Hinkley Co. v. Jordan, 146 Ala. 634, 41 So. 962; Davis v. Miller-Brent Lumber Co., 151 Ala. 580, 44 So. 639. Such a contract operates only as a license, which is revocable at the pleasure of the grantor, even though a valuable consideration has been paid to him therefor. Hicks Bros. v. Swift Creek Mill Co., 133 Ala. 411, 31 So. 947, 57 L.R.A. 720, 91 Am. St. Rep. 38. And in that case it was held that the grantor's subsequent conveyance of the land to another operates ipso facto as a revocation.
The application of these principles to the instant case must have resulted in a decree for complainants, unless the evidence showed facts which removed the transaction in question from the influence of the statute of frauds.
The learned trial judge in fact found that the timber sale was so removed by virtue of respondent's payment of the purchase money, and the delivery of the property to him; and, on that theory of the case, he denied relief and dismissed the bill.
While the testimony of respondent is in some respects self-contradictory, yet it supports the conclusion that his vendor received a part of the purchase money for the timber sold, and at the same time delivered possession of the timber in the only way it could be delivered, viz. by putting the vendee in possession of the land while engaged in cutting and removing the timber. Christopher v. Curtis-Attalla Lumber Co., 175 Ala. 484, 57 So. 837. See, also, the case of Heflin v. Bingham, 56 Ala. 566, 28 Am. Rep. 776.
We think the trial court correctly held that the sale of this timber was valid under the statute of frauds, and passed to the purchaser, the respondent here, an equitable title which must be recognized by a court of equity.
Had complainants been purchasers for value, without notice of this sale, they would of course be protected against respondent's claim. But that question is not presented.
It is, however, the contention of complainants that the testimony shows that respondent bought the timber in September, after the execution by his vendor of the deed to complainants. There is testimony to that effect, but, nevertheless, taking the evidence as a whole, that conclusion is not warranted.
Let the decree of the circuit court be affirmed.
Affirmed.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.