Smith v. Bagwell. In Missouri it was held that in a civil action of assault and battery the plaintiff might recover exemplary damages, notwithstanding the defendant had been convicted and fined in a criminal prosecution for the same offense. Corwin v. Walton, 18 Mo. 71. In Hoadley v. Watson, 45 Vt. 289, 12 Am. Rep. 197, the court hold that "exemplary damages are not given in lieu of punishment. The fact that in a civil action founded on a criminal act the guilty party had been compelled to pay exemplary damages to the party injured on account of the act would be no bar to the prosecution in a criminal proceeding for the same act, nor to any part of the fine imposed by law upon such offenses. Neither should the liability to, nor the actual imposition of a fine in a criminal proceeding, bar any portion of the liability in a civil action for the same act. The liability to both criminal punishment and to such damages as a jury may impose in a civil suit is the consequence of any act that is criminal and also creates a civil liability." See Smith v. Holcomb, 99 Mass. 552; Bixby v. Dunlap, id.; 56 N. H. 456; s. c., 22 Am. Rep. 475. * * * In the Supreme Court of the United States this question has been examined and adjudicated. In Day v. Woodworth, 13 How. 363, Mr. Justice GREER, speaking for the court, says: "It is a well-established principle of the common law that in actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive or vindictive damages upon a defendant, having in view the enormity of his offense rather than the measure of compensation to the plaintiff. We are aware that the propriety of this doctrine has been questioned by some writers; but if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument." P. W. & B. Railroad Co. v. Quigley, 21 How. 213; Mil. & St. Paul Railroad Co. v. Arms, 91 U. S. 489; 2 Sedg. Meas. Dam. (7th ed.) 323, and note. This question has elicited much discussion and the books are full of it. The courts in some of the States have held to the doctrine as contended for by the counsel for the appellant, that in a civil action for a tort, punishable also criminally, punitive or exemplary damages cannot be given by the jury, and we have carefully examined all these authorities. The current of the decision is in the contrary direction, and we can but hold that the court below did not err in refusing to give to the jury the instructions in this respect requested. Judgment affirmed. A parol sale of standing trees, although void as a sale of an interest in land, operates as a license to enter and cut and carry away the trees, until revocation, but is revoked by a sale and conveyance of the land to a third person.* TRESPA RESPASS. The opinion states the case. judgment below. James T. Maybee, for appellant. John A. Henderson, for appellee. The plaintiff had RANDALL, C. J. Lykes and Barco brought an action of trespass against Jenkins, charging him with having, on the 19th October, 1878, and subsequently, entered upon the plaintiffs' premises and cut down a large number of red cedar trees there growing, and carrying away and converting them to his own use. A second count charges him with having unlawfully entered upon plaintiffs' land and carried away a large quantity of red cedar timber. The defendant pleaded not guilty, and further, defendant pleads that he purchased the red cedar trees and timber, standing or fallen or merchantable, on the land on the 11th day of July, 1877, from one M. Atkinson, and paid him for the same, as will appear by the following contract, dated July 11, 1877: "This is to certify that I have sold to C. T. Jenkins, his heirs or assigns, all the cedar now standing or fallen or merchantable on the land known as the Wise Donation, as lots Nos. 1 and 2, in Section 5, Township 20, R. 17, S. and East, and will defend him in the same. "The condition that the said C. T. Jenkins do give the sum of one hundred dollars in a promissory note, made payable on or by the 1st of January, 1878, the said C. T. Jenkins to have reasonable time to cut the said red cedar. In testimony whereof I have hereunto set my hand and seal. "M. ATKINSON. [L. 8.] "Witness—J. S. MILLER, W. F. GAINES.” *See Hill v. Hill (118 Mass. 103), 18 Am. Rep. 455. Jenkins v. Lykes. This was duly acknowledged. The plaintiffs, for replication to this plea, admit that Atkinson did give defendant a permit to cut all the red cedar on said land, and that it was to be cut in a reasonable time, but they say that when the promissory note mentioned was paid on the 1st of January, 1878, the cedar contract between defendant and Atkinson was closed, and the permit or bill of sale expired. Further, that the bill of sale or permit was not recorded before this suit was commenced; and that on the 19th of October, 1878, Atkinson sold the land to the plaintiffs by deed duly executed and delivered. Issue being joined, a trial was had and a verdict rendered in favor of plaintiffs for $250 damages. A motion for a new trial was made and denied, and judgment entered, from which the defendant appealed. [Omitting other matter.] After the conclusion of the general charge to the jury, the plaintiffs' counsel submitted instructions in writing to be given to the jury, which were given as follows: First. That a deed in fee-simple to lands conveys all the interest and estate of the grantor therein and every thing thereon at the time of making the deed not expressly reserved in the deed. Second. That if at the time defendant entered into the contract with Atkinson for the purchase of the cedar, Atkinson told the defendant that he was not the owner of the lands, and declined to enter into said contract unless the defendant would agree to cut and remove said cedar before the sale of the lands for the Ferguson estate, and that the defendant agreed thereto, and that this is what was meant by the terms "reasonable time" in the bill of sale or permit, that the defendant was bound by such agreement, and had no legal right to cut or remove any more of said cedar from said lands after he received notice of the sale, without a further contract or permit from the purchaser. Third. That if they believe from the evidence that at the time plaintiffs purchased said lands from Atkinson, the defendant's permit or authority to cut or remove cedar therefrom had expired, they should find a verdict for the plaintiffs for the net value of all the cedar, which it has been proved to their satisfaction the defendant cut and removed therefrom, after the purchase of said lands by the plaintiffs and before the commencement of this suit, and interest thereon from the commencement of this suit, even though the Jenkins v. Lykes. defendant had no notice of the purchase of the lands by the plaintiffs. Counsel for defendant objected to these instructions being given, and excepted to the ruling of the judge in giving the same. The first is objectionable in that it charges that every thing on the land, not expressly reserved in the deed, passed to the grantees. This is clearly wrong. A deed of conveyance of land carries only the land and what is appurtenant to it, but does not carry personal property at the time being upon it. This charge gave the jury to understand, as a rule of law, that trees and timber which had been felled by the defendant and fallen timber, all which had been purchased by the defendant from the plaintiffs' grantor before their title accrued, passed by the deed. Standing trees may be the subject of a sale by parol so as to give the purchaser a license to go upon the land to cut them (1 Lord Raymond, 182), and when cut and left upon the land they become the personal property of their purchaser. Trees so cut and left upon the land do not pass with the land in consequence of their having been before that time attached to the soil, but remain subject to the legal rights of the actual owner, like any other personal property. Yale v. Seeley, 15 Vt. 221. The same was held in Bennett v. Scutt, 18 Barb. 347; and in Pierrepont v. Barnard, 2 Seld. 279, it was decided that a parol license to cut and carry away standing timber, when such license was executed before revocation, gave the licensee a property in. the timber, and the owner of the land could not recover the same in trover. This is indorsed by the same Court of Appeals in Pratt v. Ogden, 34 N. Y. 23; Claffin v. Carpenter, 4 Metc. 583; Whitmarsh v. Walker, 1 id. 313; Nettleton v. Sykes, 8 id. 34; Wood v. Manley, 11 Ad. & Ellis, 34. 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, the timber is converted into personalty, and is 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. This is the law as to such agreements by parol. In the case at bar the defendant purchased and paid for all the red cedar standing or fallen, and a contract authorizing him to cut the cedar within a reasonable time, and this agreement was under the seal of Atkinson and attested by witnesses. True, at the date of this contract, Atkinson was acting only as the agent of the owners, but he contracted with their consent and received the purchase-money. In January following he purchased the land at the "estate sale " and became the owner of it, and under his agreement with the defendant he was bound to "defend him in the same," 1. e., the title to the cedar standing or fallen and cut within a reasonable time. We have seen what is meant by a reasonable time, and we have here the evidence of the fact that the cedar was cut and carried away as fast as was practicable under the circumstances. Atkinson was all this while standing by and never forbade the defendant, but permitted him to go on cutting and carrying off the timber he had sold. Up to the time of the sale and conveyance by Atkinson to the plaintiffs, therefore, this defendant acted under an unrevoked license. Atkinson's testimony that he supposed defendant's contract was at an end and his license forfeited when he had bought the land from the executor or administrator of Ferguson's estate (and thus given better title to defendant), knowing that defendant was getting out cedar, and permitting it without a word of remonstrance, is entirely inconsistent with his own conduct. He had sold all the cedar standing or fallen; and all that was cut up to the time Atkinson sold to plaintiffs was the property of defendant and he had a right to take it away. The first proposition of the instructions was therefore error. The second instruction embraced the proposition that the "reasonable time" expired when Atkinson became the owner of the land, and gave the jury to understand that defendant had no legal right to cut or remove any timber after notice of the sale by the Ferguson estate to Atkinson. The very contrary was the effect of Atkinson's purchase. It inured to the benefit of the defendant, and his title to the cedar, which up to that time rested in parol as to Ferguson's heirs, who were the prior owners, and gave defendant title to all the timber cut or to be cut within a reasonable time, except as to the grantees of Atkinson. The third instruction is erroneous in that it charged the jury that plaintiffs were entitled to recover the net value of all the cedar the defendant had removed from the land after plaintiffs' purchase. We have seen that defendant had title to all the standing or fallen cedar that had been cut up to the time of plaintiffs' purchase, and |