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. 1 of S. E. 14 and W. 1⁄2 of N. E. 4 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. "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." 181 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. We must determine, then, the sufficiency of the attestation clause of the lease from Allen to Johnson & Rose. In Hogans v. Carruth, 19 Fla. 84, this court said: "As to the matter of the attestation of the deed, our statute does not require any particular form of words for the attestation clause of a deed and the attestation clause of a deed in the words: 'Bargained, sold, transferred and acknowledged in presents (presence) of us,' where the testificandum clause is: 'In witness whereof the said parties of the first part have hereunto set their hands and seals the day and year first above written,' other facts showing delivery being established is sufficient. The term 'acknowledged' indicates that the parties affirmed the signing and sealing to be their act before these witnesses." In 9 American & English Encyclopedia of Law, second edition, 150, it is said: "It is advisable for witnesses to sign under the phrase commonly used in the state where the land lies, yet any phrase which clearly denotes that the persons signing were witnesses will be valid." Do the letters "wit" written above the names of J. R. Smith and Joe Allen clearly denote that these persons were witnesses, so as to comply with our statute herein 182 quoted? The answer to this question is not without difficulty. The phrase commonly used in this state to denote that the persons signing are witnesses is "signed, sealed and delivered in the presence of." An attestation "sealed and delivered in the presence of" the subscribing witnesses has been held sufficient: Fosdick's Lessee v. Risk, 15 Ohio, 84, 45 Am. Dec. 562. In that case the court said: "True, the words of the statute are that the witnesses shall attest the 'signing and sealing,' but, really, to require the strictness insisted upon by the defendants' counsel, would be going a great length; it would be taking one step more toward that point to which we seem to be progressing with railroad speed-the point of declaring all the land titles in the state doubtful, defective or uncertain. The same technical nicety is not required in the execution and acknowledgment of deeds as in special pleadings. If deeds are acknowledged substantially in accordance with the statute, it is all that can be required. The signing and sealing of deeds is usually done at one and the same time, unless, perhaps, the scrivener who writes them shall have attached the seal at the time of writing, and previous to the signature. In such case the sealing is adopted by the signature of him who executed the instrument. It is not customary for a man to sign on one day and another make his scrawl or attach a wafer. There is not, I presume to say, one case in a thousand in which the same person who witnesses the sealing does not witness the signature also. And after all, it is the delivery which gives effect to the instrument." In the case of Arrington v. Arrington, 122 Ala. 510, 26 South. 152, the court said: "The deed has the names of two persons written in the place where the names of subscribing witnesses are usually placed, and found upon 183 such instruments, but the word 'attest' or 'witness' does not appear alone or in connection with these names. Nor are there any other words appearing upon the deed showing the purpose of their signatures. . . . . At common law attesting witnesses to a deed were not essential to its validity as a conveyance of lands, prior to the adoption of the statute requiring them to be attested or acknowledged this rule prevailed in this state. . . . . The usual clause to denote that the witnesses sign as such is: 'Signed, sealed and delivered in the presence of the witnesses writing their names thereunder.' . . . . The manifest object of requiring an attestation of subscribing witnesses is to enable the grantee to prove the execution by the grantor of the deed, and to show the circumstances attending the sealing and delivery. No formal words are requisite under the statute to be incorporated in the deed, or upon it, to show that the names subscribed are those of witnesses. Its language is: "The execution of such conveyance must be attested by one witness, or, when the party cannot write, by two witnesses who are able to write, and must write their names as witnesses' Code 1896, sec. 982. True, they must write their names as witnesses upon the deed, but we cannot hold if from an examination of the instrument it clearly appears, as it does in this case, that the only purpose for which the names were written was to attest the signature of the grantor to the deed, that they are not witnesses; simply because of the failure to employ some word or words indicating the purpose for which their names were written." We do not overlook the difference between the Alabama statute and our own in this respect, but the applicability of the persuasive reasoning of the court in the cases cited 184 is apparent. A deed properly delivered is not invalid because the attestation clause recites that it was signed and sealed only, without reciting that it was delivered: Bradley Fertilizer Co. v. Pace, 80 Fed. 862, 26 C. C. A. 198; Hogans v. Carruth, 19 Fla. 84. There was proof of the proper delivery of this deed; and it was shown also that the deed was in possession of the grantee and that the deed was recorded, which is prima facie evidence of its delivery: Southern Life Ins. etc. Co. v. Cole, 4 Fla. 359; Campbell v. Carruth, |