32 Fla. 264, 13 South. 432; Billings v. Stark, 15 Fla. 297; Ellis v. Clark, 39 Fla. 714, 23 South. 410. Were the attestation clause of the deed in the instant case "signed and sealed in the presence of us" it would clearly be sufficient. The concluding clause of the deed in question declares "in witness whereof we hereunto set our hands and seals." Under those words, on the left-hand side of the page, in the place where the names of witnesses to the execution of a deed are usually found, appear the word or letters "Wit" and the names of two persons. We have no difficulty in coming to the

conclusion that "wit" means and stands for the word "witness," or "witnesses," and, therefore Smith and Joe Allen signed the deed as witnesses, and that they were witnesses of the setting of the hands and seals-of signing and sealing -of the grantors in the deed, as declared by them in the concluding clause of the deed. We think the deed shows substantially and clearly upon its face that it was signed and sealed in the presence of the two persons who purport to have signed the same as witnesses. In coming to this conclusion, we confine our decision to the objections raised.

2. The fourth assignment of error is: "The court erred in admitting in evidence the transfer of leases made 185 by Johnson and wife to E. P. Rose." The paper referred to here was a properly executed and acknowledged and recorded transfer by J. N. Johnson of his undivided one-half interest in several timber leases, including the one from J. B. Allen and Alice Allen, his wife, already introduced in evidence by the plaintiff. To the introduction in evidence of this paper, the defendant objected, on the ground that the title of J. B. Allen in and to the locus in quo had not been traced back to the government; but plaintiff announced his intention to do so, and the objection was overruled, the paper admitted in evidence, to which ruling the defendants excepted. This ruling of the court was correct, because later the plaintiff offered and the court admitted in evidence letters patent from the United States to Joseph B. Allen for the land, covered by the lease from Allen to Johnson and Rose, already in evidence.

The trial court is authorized to regulate the order of the introduction of evidence, and its discretion in this matter will only be interfered with by this court where clearly abused: Wilson v. Johnson, 51 Fla. 370, 41 South. 395.

3. The fifth, sixth, seventh and eighth assignments have been argued and will be considered together. They relate to the refusal of the court to admit in evidence a deed, duly executed, acknowledged and recorded, from J. B. Allen and wife to J. M. Barrow, purporting to convey the lands in

cluded in the lease by Allen to Johnson and Rose prior to the deed from Allen to Barrow. The other deeds covered by these assignments include a deed from Barrow to Madden, a deed from Madden to Settles, a deed from Settles to J. A. Richbourg & Co., and a deed from Barrow to J. A. Richbourg & Co., purporting to 186 convey the lands involved in this suit, and which had been leased to plaintiff Rose before the execution thereof. Upon being offered in evidence by the defendants, each deed was objected to by the plaintiff upon the ground that the "deed bore date subsequent to the date and record of the timber and turpentine lease from the original owner to the plaintiff, the source from which all these titles sprung." The objection was sustained and the court refused to allow the deeds to be read in evidence, to which ruling the defendants excepted.

Counsel for plaintiffs in error contend that the sale of the standing timber for turpentine purposes made by Allen and wife to Johnson and Rose was nothing but a mere license liable to revocation, and was revoked by the making of a subsequent conveyance by the licensor, without a reservation; that the timber lease from Allen to Johnson and Rose passed no interest in the land upon which the timber grew. In support of this contention, counsel cites Fish v. Capwell, 18 R. I. 667, 49 Am. St. Rep. 807, 29 Atl. 840, 25 L. R. A. 159. The written instrument therein relied upon, not acknowledged or recorded as a deed, purporting to convey all the standing wood on a certain lot of land, with two years in which to cut and remove said wood, was construed not as passing any interest in the land, but as an executory contract or parol license, which was revoked by a subsequent conveyance of the land to another person. In a note in 25 L. R. A. 159, the author says: "While as the court states in the above case it refuses to follow the weight of authority upon the question how far a sale of standing timber is within the statute of frauds (see note to Hirth v. Graham (Ohio), 19 L. R. A. 721), it seems to have at the same time applied the rule in force in states holding sales to be within the statute as to 187 attempted sales being regarded as a license. The only way to reconcile the two positions would seem to be to hold that no sale was effected until the timber was delivered. In other words, that a sale could not be made of standing timber." Other cases cited by counsel hold that an agreement to sell another the wood and timber on certain land with a given time to remove it is an executory contract for the sale of chattels to take effect when the timber is severed from the land, with a license to enter and cut the trees and remove

them, and that this license is revocable at any time before the purchaser has entered and cut the trees: Fletcher v. Livingston, 153 Mass. 388, 26 N. E. 1001; Drake v. Wells, 11 Allen (Mass.), 141; United Soc. v. Brooks, 145 Mass. 410, 14 N. E. 622; Claflin v. Carpenter, 4 Met. (Mass.) 580, 38 Am. Dec. 380. To the same effect is the holding by this court in Jenkins v. Lykes, 19 Fla. 148, 45 Am. Rep. 19, Counsel are mistaken in their contention that the instrument relied upon in Jenkins v. Lykes, 19 Fla. 148, 45 Am. Rep. 19, is similar to the one in the instant case. The instrument signed by Atkinson in the former case was nothing but a contract to cut the cedar within a reasonable time, the court saying on page 158: "The doctrine is that though the simple agreement for a sale of the trees is void as a contract for an interest in land, standing trees being of the realty, yet if executed by cutting the trees, timber is converted into personalty, and was sufficient to vest a title thereto in the party acting under the license, he having complied with the conditions under which the license was granted." The instrument in that case contained no words of conveyance, simply stating: "This is to certify that I have sold to C. T. Jenkins

all the cedar now standing. . . . . The condition that the said C. T. Jenkins 188 do give the sum of one hundred dollars in a promissory note," etc. The instrument in the instant case is not a license, or executory contract or agreement to sell growing trees. It acknowledges receipt of payment of one hundred and fifty dollars by Johnson and Rose, and recites that grantors "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 therein described. It provides, "we further grant, bargain, sell and lease unto the said Johnson & Rose the abovedescribed lands to be used for turpentine purposes and privileges, giving and granting unto the said Johnson and Rose the right at any time from the date hereof until the first 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." This instrument, duly acknowledged and recorded, was not revoked by the subsequently executed deed of conveyance of the real property made by Allen and wife to J. M. Barrow: Owens v. Lewis, 46 Ind. 488, 15 Am. Rep. 295.

4. Plaintiffs in error contend that the deed from Allen and wife to Barrow, and the other deeds under which defendants claimed, ought to have been admitted in evidence as showing

"an adverse holding upon the part of the defendants that they were in possession of the land under a claim of right, and even should the court find that the instrument from Allen to Rose and Johnson conveyed an interest in the land, the deeds offered by the defendants should have been read in evidence under their plea of not guilty, to show how they were holding, and to show that if the plaintiff had any remedy, that this was not the proper remedy, and the remedy should have been 189 by ejectment." This objection should be considered in connection with the contentions presented by the first and second assignments of error, and the motion for new trial: "That the turpentine replevied was in the boxes on the trees, so attached to the land as to be a part of the realty and not subject to replevin; that in order to maintain replevin plaintiff must be the owner of, or in possession of, the property, and that the evidence does not show that the plaintiff was ever in possession of the turpentine that he sought to replevy.

The evidence in this case shows that the plaintiff never went into actual possession of the locus in quo; that he was engaged in the turpentine business in Walton county, and . bought the land from Allen for that purpose, but before he needed the timber thereon the defendants, having bought the same land as we have seen, went into possession of it and boxed and chipped the trees. While the turpentine was in the boxes, in a state to be dipped up, it was replevied by plaintiff.

We agree with counsel that an action of replevin is one for the recovery solely of personal property, and cannot be maintained to recover real property: 4 Am. & Eng. Ency. of Law, 2d ed., 480. It is well settled, however, that turpentine in boxes, in a state to be dipped up, is personal property. It no longer forms a part of the tree, but has been separated by a process of labor and cultivation. The turpentine crop has been properly classed with fructus industriales, for it is not the spontaneous product of the trees, but requires annual labor and cultivation. As was said in State v. Moore, 11 Ired. 70: "If, like the sap of the sugar maple, its flow were directed into a vessel set on the ground near the tree, no one would doubt its being severed from the realty. Now, 190 this is the same in substance. For the box, though, in the tree, is but a more convenient receptacle for the turpentine, after it has been extracted or has been made to exude from the pores, which contained it, while in the tree, as a part of it. When it ceased to be a part of the tree it necessarily becomes a chattel." Crude turpentine which has formed on the body of

the tree, and is called scrape, is said to be personal property: Lewis v. McNatt, 65 N. C. 63. See, also, Branch v. Morrison, 5 Jones, 16, 69 Am. Dec. 770; Holt v. Holt, 57 Mo. App. 272; Brittain v. McKay, 1 Ired. 265, 35 Am. Dec. 738; State v. Moore, 11 Ired. 70.

The plaintiff, to recover in this action, must show right of possession in himself to the property replevied. He can only recover upon the strength of his own right of possession: Holliday v. McKinne, 22 Fla. 153.

In an action of replevin a plea of not guilty puts in issue not only the right of the plaintiff to the possession of the property replevied, but also the wrongful taking and detention thereof. Under such plea the defendant can give any evidence of special matter which amounts to a defense to the plaintiff's cause of action, to show that the property is not entitled to the possession of the property replevied: Holliday v. McKinne, 22 Fla. 153.

Where property which has been annexed to the freehold as severed therefrom, it becomes personal property so as to become recoverable by an action of replevin. But in order to maintain such action the plaintiff must have the actual or constructive possession of the land, and as the title to land cannot be tried, ex directo in replevin, if the series of acts in which the severance has occurred are sufficient to create an adverse possession in the defendant, 191 replevin cannot be maintained: Washburn v. Cutter, 17 Minn. 361; 7 Smith's Lead. Cases, 6th Am. ed., 604; Cobbey on Replevin, sec. 375. The possession here alluded to is 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: Stockwell v. Phelps, 34 N. Y. 363, 90 Am. Dec. 710.

The owner in fee of wild land has the constructive possession thereof, unless there be an adverse possession: Washburn v. Cutter, 17 Minn. 361; Cobbey on Replevin, sec. 378. See Jenkins v. Lykes, 19 Fla. 148, 45 Am. Rep. 19. Thus it is stated in the section cited from Cobbey on Replevin: "Where the land was in the actual possession of W. under a claim of right and adverse to the plaintiff, who, it was held, had the title, and cut a quantity of grass and sold the hay to the defendant, on replevin brought by the plaintiff against the defendant, held, that as W. was in possession under a claim of right, he would be regarded as the owner until decreed otherwise, and that W. could convey a good title to the hay so sold. The courts have gone so far as to hold that where the Am. St. Rep., Vol. 125-68