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tain sum of money, that the grantors have bargained, sold and conveyed to a certain person all of the pine timber now standing upon certain described lands, that the described lands have been granted, bargained, sold and leased to the grantee to be used for turpentine purposes and privileges, and that the grantee is granted and given the right for a certain period to enter upon and work said timber for turpentine purposes as well as to cut and remove the timber with the right of ingress and egress, which said instrument was acknowledged and recorded, it cannot be revoked by a subsequently executed deed of conveyance of the real property made by the same grantor. (p. 1071.)

REPLEVIN–Lies for Personal Property Only.-An action of replevin is one for the recovery solely of personal property, and cannot be maintained to recover real property. (p. 1072.)

CRUDE TURPENTINE-Nature of as Personal Property.Crude turpentine in boxes in pine trees, in a state to be dipped up, is personal property. The turpentine crop is properly classed with fructus industriales, for it is not a spontaneous product of the trees, but requires annual labor and cultivation. (p. 1072.)

CRUDE TURPENTINE Which has Formed on the Body of the Tree, and is called scrape, is personal property. (p. 1073.)

REPLEVIN—Possession Necessary to be Shown.-In replevin, the plaintiff, in order to recover, must show a right of possession in himself to the property replevied. He can recover only upon the strength of his own right of possession. (p. 1073.)

REPLEVIN-Effect of Plea of not Guilty.-In an action of replevin a plea of not guilty puts in issue not only the right of plain. tiff to the possession of the property replevied, but also the wrongful taking and detention thereof. Under such plea, defendant can give any evidence of special matter which amounts to a defense to plaintiff's cause of action, to show that the plaintiff is not entitled to the possession of the property replevied. (p. 1073.)

REPLEVIN.—Where Property which has been Annexed to the Freehold is Severed therefrom, it becomes personal property so as to become recoverable by an action of replevin. (p. 1073.)

REPLEVIN of Property Severed from Freehold.-In order to maintain replevin for property which had been annexed to the free. hold, but subsequently severed therefrom, the plaintiff must have the actual or constructive possession of the land. (p. 1073.)

REPLEVIN-Effect of Adverse Possession.-Inasmuch as the title to land cannot be tried, ex directo in replevin, if the series of acts, by which property which had been annexed to the freehold is severed therefrom, are sufficient to create an adverse possession in the defendant, replevin cannot be maintained. But such adverse possession must be something more than a mere act of trespass. It must be so long continued, and so far yielded to, as to constitute a possession to the exclusion of others, an occupancy, as distinguished from a mere act of trespass. (p. 1073.)

THE CONSTRUCTIVE POSSESSION of Wild Land is in the owner of the fee unless there is an adverse possession in some one else. (p. 1073.)

ADVERSE POSSESSION of TurpentineTimber Land.—The occupation of pine land, by annually making turpentine on it, is such an actual possession as will oust a constructive possession by one claim. ing merely under a superior paper title. (p. 1075.)

ADVERSE POSSESSION.—The Effect of Color of Title, when an entry is made and possession taken and held in accordance with it, is to define the extent of the possession claimed; but the entry and

possession must be proved by acts sufficient to constitute such adverse entry and possession. (p. 1076.)

REPLEVIN OF TURPENTINE-Defense of Adverse Possession.—Where defendants were in the exclusive possession of turpen. tine trees and the land, their employés cutting the boxes in the trees, chipping them, dipping the turpentine and hauling it away in barrels, some six or seven thousand trees being so worked by them, and plaintiff knew these facts for months previously, but never entered the land, nor cut timber thereon, nor chipped trees, nor turpentined them, his constructive possession of the property was not sufficient to overcome the possession of the defendants, which was under a claim and color of right, and hence plaintiff could not maintain replevin for the turpentine made on the property by defendants. (p. 1076.)

ADVERSE POSSESSION–Misleading Instruction.—An instruction that “If the jury should find from the evidence that has been in. troduced before them that the plaintiff was the owner of pine trees located upon lands described in the declaration by a conveyance from persons who derived title to the land by title from the United States government, and that the defendants were in possession, at the time of the institution of this suit, or crude turpentine in the boxes located on this land, and they were not there with the plaintiff's consentthat is, they were not in possession with the plaintiff's consent—then the jury should ascertain how much of the turpentine there was, and its value, and render a verdict for the plaintiff for the amount so found,” is erroneous and misleading, in that it excludes the conten. tion of defendants that they were in adverse possession, claiming un. der color of right and were not trespassers. (p. 1076.)

Daniel Campbell & Son, for the plaintiffs in error.
S. K. Gillis and Avery & Avery, for the defendants in error.

176 PARKHILL, J. On the twenty-fifth day of April, 1906, the defendant in error, hereinafter called the plaintiff, instituted an action of replevin against the plaintiffs in error, who for convenience will be known elsewhere in this opinion as the defendants, in the circuit court for Walton county, to recover the crude turpentine in the turpentine boxes in the pine trees on the west half of the southeast quarter and the west half of northeast quarter of section 26, town. ship 3 north, range 23 west, in Walton county, Florida, alleged in the affidavit to be of the value of one hundred and twenty-five dollars. The property was redelivered to defendants upon their forthcoming bond. On the seventh day of May, 1906, the plaintiff filed his declaration, alleging therein that defendant wrongfully detained from the plaintiff the said personal property, the crude turpentine as aforesaid, from the plaintiff's possession; that said property was of the value of one hundred and twenty-five dollars, and claimed two hundred and fifty dollars damages. On the fourth day of June, 1906, the defendants filed a plea of not guilty and on the third day of October, 1906, an additional plea "that the said property is not the property of plaintiff.” The plaintiff joined issue on both pleas. On the third day of October, 1906, a trial was had, resulting in a verdict in favor of the plaintiff for twelve barrels of crude gum of the value of five dollars and fifty cents per barrel, sixty-six dollars. A motion for new trial was overruled, to which ruling the defendants excepted. Final judgment was rendered on the verdict, from which verdict defendants 177 seek relief here by writ of error. Three other causes between the same parties, of a similar nature, pending in the court below, by agreement, depend upon and will abide the decision in the instant case.

1. Passing by the first and second assignments of error, to consider them in their logical order, we will direct our attention first to the third assignment, as follows: “The court erred in admitting in evidence the timber lease or deed from J. B. Allen and wife to Rose and Johnson over defendants' objection.” This assignment is based upon the introduction in evidence of the following paper-writing by the plaintiff: “State of Florida,

Walton County.

“Know all men by these presents, That we, J. B. Allen and wife, Alice Allen, for and in consideration of the sum of one hundred and fifty ($150.00) to us in hand paid by Johnson & Rose the receipt of which is hereby acknowledged have granted, bargained and sold and by these presents do bargain, sell and convey unto the said Johnson & Rose all the pine timber now standing upon the lands, to wit: W. 14 of S. E. 14 and W. 1, of N. E. 14 of Section 26 in Township 3 North of Range 23 West, containing 160 acres, situated and lying in Walton County, Florida.

178 “We further grant, bargain, sell and lease unto the said Johnson & Rose the above described lands to be used for turpentine purposes and privileges giving and granting unto the said Johnson & Rose the right at any time from the date hereof until the 1st day of May, 1910, to enter upon and work said timber for turpentine purposes as well as to cut and remove said timber from said land with the right of ingress and egress to and from same. We warrant the title of said lands and its freedom from all incumbrances.

“In witness whereof we hereunto set out hands and seals, this 4th day of May, 1903. “Wit.

his “J. R. SMITII,

J. X B. ALLEN, (Seal.) his

mark “JOE X ALLEN,

ALICE ALLEN. (Seal.)

. mark.

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"State of Florida,

Walton County.

“Before the subscriber personally appeared J. B. Allen and Alice Allen, known to me to be the individuals described, and acknowledged that they executed the foregoing instrument for the uses and purposes therein set forth, and the said Alice Allen, on a private examination by me, held separate and apart from her husband, acknowledged and declared that she executed the same freely and voluntarily, and without fear, apprehension, compulsion or constraint of or from her husband, and for the purposes of renouncing, relinquishing and conveying all her rights of whatsoever kind in and to the said property: Given under my hand and seal this 4 day of May, A. D. 1903. "(L. S.)

E. W. CARTER, J. P. “Filed for record, this 3 day of June, A. D. 1903, at 10 179 o'clock A. M., and recorded in Vol. 14, at page 451 of deeds and record verified. (L. S.)

JAMES A. MCLEAN, “Clerk Circuit Court, Walton County, Florida.” To the reading of the same in evidence, the defendants objected on several grounds. The objections argued here are as follows: “It does not purport to be signed, sealed and delivered in the presence of two witnesses; there is no attestation clause to it.” The judge overruled the objections thereto and admitted same in evidence. To which ruling the defendants excepted.

It is urged in argument that “this instrument purported to convey the turpentine privileges upon a certain piece or parcel of land; it was offered in evidence as a conveyance of the interest in land; it was necessary, in order to operate as a conveyance of the interest in land, that it be signed, sealed and delivered in the presence of two witnesses,” and that the letters “wit" above the names of J. R. Smith and Joe Allen are not sufficient to show a signing by grantors in the presence of two witnesses.

We agree with counsel for plaintiff in error that this instrument purports to grant an estate in land for a term of more than two years, and, under the provisions of section 2448 of the General Statutes of 1906 and section 1950 of the Revised Statutes of 1892, “no estate or interest of freehold, or for a term of years of more than two years, or any uncertain interest of, in or out of any messuages, lands, tenements or hereditaments shall be created, made, granted, transferred or released in any other manner than by deed in writing,

signed, sealed and delivered in the presence of two subscribing witnesses."

There is conflict of authority, both in England and in 180 this country, upon the question whether a sale of growing trees is the sale of an interest in or concerning land, so as to be within the operation of the statute of frauds. The great weight of authority in this country is that a sale of growing or standing timber is a contract concerning an interest in land, and within the statute of frauds: Hirth v. Graham, 50 Ohio St. 57, 40 Am. St. Rep. 641, 33 N. E. 90, 19 L. R. A. 721, and cases cited; Owens v. Lewis, 46 Ind. 488, 15 Am. Rep. 295, and cases cited and reviewed; Garner v. Mahoney, 115 Iowa, 356, 88 N. W. 828; Wiggins v. Jackson, 24 Ky. Law Rep. 2189, 73 S. W. 779.

In Hirth v. Graham, 50 Ohio St. 57, 40 Am. St. Rep. 641, 33 N. E. 90, 19 L. R. A. 721, and cases cited, the court, after reviewing the cases pro and con on this question, said: “The question is now for the first time before this court for determination; and we are at liberty to adopt that rule on the subject most conformable to sound reason. In all its other relations to the affairs of men, growing timber is regarded as an integral part of the land upon which it stands; it is not the subject of levy and sale upon execution as chattel propertyit descends with the land to the heir and passes to the vendor with the soil. .... Sales of growing timber are as likely to become the subjects of fraud and perjury as are the other integral parts of the land, and the question whether such sale is a sale of an interest in or concerning lands should depend, not upon the intention of the parties, but upon the legal character of the subject of the contract, which, in the case of growing timber, is that of realty. This rule has the additional merit of being clear, simple and of easy application qualities entitled to substantial weight in choosing between conflicting principles."

This is not an open question in this state. In Jenkins v. Lykes, 19 Fla. 148, 45 Am. Rep. 19, the court held that a “simple contract for sale of the trees is void as a contract for an interest in land, standing trees being of the realty.” And in King v. State, 43 Fla. 211, 31 South. 254, the court considering an instrument of like force and effect as the one in the instant case, held that it purported to grant an estate in land for a term of more than two years, and was executed with only one subscribing witness, and was under the above statute invalid and ineffectual as a lease for such term.

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