CRITICAL ANALYSIS OF PRINCIPLE LAID DOWN IN MARSHALL V/S GREEN

1875(1) CPD35/33 LT 404

PROJECT SUBMITTED BY:

AMAN GUPTA

BBA LLB (Hons.)

Roll No. 1811

SUBMITTED TO:

DR. B.R.N. SARMA

SEPTEMBER, 2017

FOR PROPERTY LAW FOR THE DEGREE OF BBA LLB(HONS.)

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR, PATNA-800001
 DECLARATION

I hereby declare that the project entitled “CRITICAL ANALYSIS OF PRINCIPLE LAID DOWN IN

MARSHALL V/S GREEN” submitted by me at CHANAKYA NATIONAL LAW UNIVERSITY is a

record of bona fide project work carried out by me under the guidance of our mentor Mr. B.R.N. Sarma.

I further declare that the work reported in this project has not been submitted and will not be submitted,

either in part or in full, for the award of any other degree or diploma in this university or in any other

university.

__________

(AMAN GUPTA)

Roll no. – 1811

Page | 2
 ACKNOWLEDGEMENT

It is a fact that any research work prepared, compiled or formulated in isolation is inexplicable to an
extent. This research work, although prepared by me, is a culmination of efforts of a lot of people who
remained in veil, who gave their intense support and helped me in the completion of this project.

Firstly, I am very grateful to my subject teacher Mr. B.R.N. Sarma, without the kind support and help of
whom the completion of this project was a herculean task for me. He donated his valuable time from his
busy schedule to help me to complete this project. I would like to thank him for his valuable suggestions
towards the making of this project.

I am highly indebted to my parents and friends for their kind co-operation and encouragement which
helped me in completion of this project. I am also thankful to the library staff of my college which
assisted me in acquiring the sources necessary for the compilation of my project.

Last but not the least, I would like to thank the Almighty who kept me mentally strong and in good
health to concentrate on my project and to complete it in time.

I thank all of them !

AMAN GUPTA

Roll No. - 1811

Page | 3
 TABLE OF CONTENTS

Page No.

1. Introduction --------------------------------------------------------------------------------------------- 5 - 6

 Aims and objectives

 Hypothesis
 Research methodology
 Sources of data
 Limitation

2. Critical Analysis of the Principle laid down in the case------------------------------------------- 7 – 11

 Facts
 Decision
 Critical Analysis

3. Applicability of the Principle to the Relevant Statutory Provisions----------------------------- 12 - 15

4. Conclusion and Suggestion --------------------------------------------------------------------------- 16

6. Bibliography -------------------------------------------------------------------------------------------- 17

Page | 4
 1. INTRODUCTION

Are sales of standing trees within the Statute of Frauds? Do they involve any “interest in or concerning
land”?

This question arises in various ways: sometimes in a suit by the buyer against the seller for breach of
contract in not allowing him to remove the trees; sometimes in a suit by the seller for the price of the
trees which the buyer has or has not taken away; sometimes in action for trespass by the seller against
the buyer for entering on the land and cutting the trees, either before or after having been forbidden to
do so, or vice-versa; occasionally in an action between the buyer and a subsequent grantee of the land
before the trees have been cut, and either with or without notice of the prior sale of the trees. Different
considerations may apply under these different circumstances, which may in part account for some of
the apparently conflicting views expressed on this question. It may not be possible to reconcile all the
decision, much less all the dicta, on this subject, but the general drift of the cases seems to support
several propositions.1

In the case of Marshall v. Green2, the defendant purchased some growing trees, by word of mouth, on
the terms that he would remove them as soon as possible. Later, when the defendant cut down some
trees, the plaintiff countermanded the sale and prohibited the defendant from cutting the remaining.
However, the defendant still cut them and carried them away. It was not denied by either party that there
was a verbal contract. However, the question here was whether the contract was required to be in
writing under the Statute of Frauds.

The researcher here in this case would concentrate on the issue whether there has been a transfer of
interest in land (in which registration is compulsory) or whether it was a mere sale of timber.

1
Sale of Standing Trees, 8 HARVARD LAW REVIEW 372, 367-376 (1875).
2
1875(1) CPD35/33 LT 404.
Page | 5
 AIMS AND OBJECTIVES

 To decide the nature of standing timber when it becomes the subject of sale as a moveable
property.

HYPOTHESIS
HYPOTHESIS

 Sale of standing timber does not creates an interest in the land concerned

RESEARCH METHODOLOGY

 The researcher would like to undertake the doctrinal method of research.

SOURCES OF DATA

 The researcher has used both, primary as well as the secondary sources to complete the project.

LIMITATION

 There is a time limitation for the researcher to finish the research.

 The researcher is limited to his own self for the research.

Page | 6
 2. CRITICAL ANALYSIS
2. ESSENTIALS OF UNDUEOF TINFLUENCE
HE PRINCIPLE LAID DOWN IN THE CASE

 FACTS

In the case, the defendant purchased thirty-two growing trees, by word of mouth, on the terms that
he would remove them as soon as possible. Later, when the defendant cut down some trees, the
plaintiff countermanded the sale and prohibited the defendant from cutting the remaining. However,
the defendant still cut them and carried them away. It was not denied by either party that there was a
verbal contract. However, the question here was whether the contract was required to be in writing
under the Statute of Frauds. The issue was whether there has been a transfer of interest in land (in
which registration is compulsory) or whether it was a mere sale of timber.

 JUDGEMENT

The criteria stated by Lord Coleridge C.J. in Marshall v. Green3 was that if the trees were to be left
on the land for the advantage of the purchaser so that he would derive benefit from further growth,
then, the contract was for sale of an interest in land. If, on the other hand, the purchaser was to enter
and take the timber immediately, he would derive no benefit from the land and the contract was one
for the sale of goods.

The court held to be not the sale of any interest in land but merely of timber which formed the
subject matter of transfer and that the contract was enforceable because it was for the sale of
personalty and it had been partially performed. In so ruling the court distinguished between the cases
where the trees were intended to remain in the land and derive a benefit therefrom, and those were
an immediate severance was contemplated saying:

“Where the thing sold is to derive no benefit from the land and it is to be taken away immediately,
the contract is not for an interest in the land”4

3
Supra note 2.
4
John M. Morgan, Sales- the effect of the Uniform Sales Act on Contracts for the sale of Standing Timber, 36 MARQUETTE
LAW REVIEW 283, 280-289 (1952-1953).
Page | 7
 “The principle of these decisions appears to be this, that wherever at the time of the contract it is
contemplated that the purchaser should derive a benefit from the further growth of the thing sold
from further vegetation and from the nutriment to be afforded by the land, the contract is to be
considered as for an interest in land; but where the process of vegetation is over, or the parties
agree that the thing sold shall be immediately withdrawn from the land, the land is to be considered
as a mere warehouse of the thing sold, and the contract is for goods.”5

 CRITICAL ANALYSIS

The rights of a Grantee of a Deed conveying standing timber have been the subject of much
litigation. Whenever and wherever the problem has arisen, it has resulted in a great deal of confusion
so that many jurisdictions have developed their own peculiar rules. Any attempt to reconcile these
views would be a hopeless task. Even an effort to state with certainty or to show a logical evolution
of the present law in one jurisdiction would be met with quite a bit of difficulty since courts have
frequently reversed or qualified previous rulings. Thus it can be seen that any statutory enactment
which would help to clarify and unify these rules would be very desirable.

Generally the law of the "timber cases" is concerned with two main problems; when no time is
stated for removal of the trees, is a fee absolute in the trees granted or must they be removed within
a reasonable time; and what is the effect of a failure to remove the trees within the time fixed for
removal on the rights of the grantee.

On the problem of the time for removal, the intent of the parties is held to govern. As a general rule
a reasonable time is allowed and a grant in perpetuity will not be implied unless such can be clearly
seen to have been the intention of the parties. The wording in deeds construed as conveying a fee in
the trees has usually been of two types, one in which the right is given to cut the timber which may
at anytime grow on a certain piece of land, and the other granting a right forever to cut the timber
standing at the time of the grant in which case certain trees are often specified." If an immediate
severance of the trees is indicated by the contract only a reasonable time is allowed for removal
when no time is stated. What is a reasonable time depends on the circumstances attending the

5
SIR DINSHAW FADUNJI MULLA, THE TRANSFER OF PROPERTY ACT, (11TH ed. 2013).
Page | 8
 making of the contract, and the location, nature, accessibility, and uses of the land and the timber.
Some states have adopted special rules which vary the requirement as to a reasonable time.

In this case there was a sale of timber by the plaintiff. Sec. 3 of the Transfer of Property Act, 1882
deals with Standing Timber. Trees are generally divisible into two classes: (1) Fruit bearing trees
and (2) timber trees; they are grown not for the sake of fruits but for the sake of their wood which is
used as timber. A fruit-bearing tree is meant to remain standing, because it is only when standing
that it can bear fruits. A timber tree on the other hand, is meant to be cut down; it is only after it is
cut down that its trunk, etc. can be used as timber. A standing tree can never be used for timber and a
felled tree can never be used for producing fruits. A timber tree does not cease to be a timber tree,
because its owner has no present intention of cutting or felling it. Whether a tree is a timber tree or
not does not depend upon whether there exists, an intention in somebody to cut it or not. It cannot be
said that a timber tree comes into existence only when an intention to cut it sooner or later is formed
and there is no timber tree in existence prior to the formation of such an intention.

“In the English law an unconditional sale of growing trees to be cut by the purchaser, has been held
to be a sale of an interest in land; but not so if it is stipulated that they are to be removed as soon as
possible”6

A tree will continue to draw sustenance from the soil so long as it continues to stand and live; and
that physical fact of life cannot be altered by giving it another name and calling it “standing timber”.
But the amount of nourishment it takes, if it is felled at a reasonably early date, is so negligible that
it can be ignored for all practical purposes and though, theoretically, there is no distinction between
one class of tree and another, if the drawing of the nourishment from the soil is the basis of the rule,
as it is to be, the law is grounded, not so much on logical abstractions as on sound and practical
common sense. It grew empirically from instance to instance and decision to decision until a
recognizable and workable patter emerged; and here, this is the shape it has taken.

Before a tree can be regarded as “standing timber”, it must be in such a state that, if cut, it could be
used as timber; and when in that state must be cut reasonably early. The rule is probably grounded
on generations of experience in forestry and commerce and this part of the law may have grown out
of that. It is easy to see that the tree might otherwise deteriorate and that its continuance in the forest

6
1 DR. SIR HARI SINGH GOUR, COMMENTARY ON THE TRANSFER OF PROPERTY ACT 68 (12TH ed. 2012).
Page | 9
 after it has passed its prime might hamper the growth of younger wood and spoil the forest and
eventually the timber market. But however that may be, the legal basis for the rule is that trees that
are not continue to draw nourishment from the soil and that the benefit of this goes to the grantee.7

Though standing timber is declared to be a movable property, still parties entering into a contract
with reference to such timber may, expressly or by implication, agree that the transferee of the
timber shall enjoy, for a long or short period, some distinct benefit to arise out of the land on which
the timber grows. In such a case the contract would operate as a transfer of an interest in immovable
property.8

The standing trees embedded in the earth are the part of the land, and if there is any transfer of
property and, unless there is any express or implied different intention appearing in the agreement,
the interest in the property would also include anything attached with the land which is agreed to be
sold.

The contention raised in the case of Marshall v. Green was as such whether there was a sale of any
interest created in any land. As a general rule, a sale of growing crops or fruit is deemed a sale of
chattels only, and does not confer an interest in land so as to come within the provisions of sec. 4 of
the Statute of Frauds. With respect to fructus industriales, i.e., corn and other growth of the earth
which are not produced spontaneously but by labour and industry, a contract for the sale of them
while growing, whether they are in a state of maturity or have still to derive nutriment from the land
in order to bring them to that state, is not a contract for the sale of any interest in land, but merely for
the sale of goods. Also when the owner of the soil sells what is growing on the land, whether natural
produce, as timber, grass, or apples, or fructus industriales, on the terms that he will cut or sever
them from the land and deliver them to the purchaser, there is no sale of any interest in the land. On
these principles it has been held that the sale of a growing crop of wheat, of a crop of growing corn
and the eatage of the stubble afterwards together with some growing potatoes and whatever lay grass
was in the fields, of a crop of potatoes which had matured, and of a crop of growing potatoes are all
sales of chattels only.

7
Shantabai Smt. v. State of Bombay, A.I.R. 1958 S.C. 532 at pp. 526-37: 1959 S.C. J. 1098: 1959 S.C.R. 265.
8
Seeni Chettiar v. Santnanathan, 20 Mad. 58 at pp. 65,66 (F.B.) Abdullah v. Ashraf Ali, 7 C.L.J. 152.
Page | 10
 In the case of the sale of a crop of growing grass in a close for the purpose of being mown and made
into hay by the purchaser, the purchaser acquires a right to the exclusive possession of the close for
that purpose, and may maintain trespass against any person entering the close and taking the grass
even with the assent of the vendor.9

An unconditional sale of underwood or growing trees to be cut by the purchaser is a sale of an

interest in land; but not so when it is stipulated that they shall be removed as soon as possible.10 The
same thing which happened in this case where the petitioner ordered that the trees must be removed
immediately and therefore there was no creation of an interest in the land but the fact that after
cutting some trees he was denied to cut more but the contract would be enforceable in that case
because it was a sale of personalty and since it is an oral contract it does not cover sec. 4 of Statute
of Frauds, which says, that an action may not be brought on the contract unless there is a written
note or memorandum signed by the party being charged or a person authorized by them, and there
after when the defendant cut the tree despite prohibition he could not be declared as a trespasser.

9
1 EARL OF HALSBURY, THE LAWS OF ENGLAND 395 (1907).
10
1 EARL OF HALSBURY, THE LAWS OF ENGLAND 393 (1907).
Page | 11
 3.3.AUNDUE
PPLICABILITY OF THE
INFLUENCE PRINCIPLE TO THE R
IN UNCONSCIONABLE BARGAINS
ELEVANT
STATUTORY PROVISION

The principle laid down in the case of Marshall v. Green, “The principle of these decisions appears
to be this, that wherever at the time of the contract it is contemplated that the purchaser should
derive a benefit from the further growth of the thing sold from further vegetation and from the
nutriment to be afforded by the land, the contract is to be considered as for an interest in land; but
where the process of vegetation is over, or the parties agree that the thing sold shall be immediately
withdrawn from the land, the land is to be considered as a mere warehouse of the thing sold, and the
contract is for goods.”11

The principle laid down has been applied to various cases and the leading one is the case of Green v.
Armstrong12 where the vendee there had the right to cut and carry away the trees at any time within
twenty years; and after he had cut a part, the vendor forbid him to cut the rest, - or in other words,
revoked his license, - and the vendee brought an action on the contract for damages, but it was held
he could not recover as the contract was only oral. This decision has been often approved in New
York. Here in this case the vendor has expressly stipulated that he vendor has expressly stipulated
that the trees may remain standing on the land a given number of years, if the purchaser elects. Here,
as they may, and probably will, de rive more or less growth and increase from the soil, there is some
reason to hold that the sale involves an "interest in land." In fact it has been considered a sale not
only of the trees as they then are, but as they will be at the end of the stipulated period, with all the
additions to them subsequently acquired from the soil.

Lord Coleridge gave an extended form of the decision in a subsequent case in Duppa v. Mayo13 as
follows:

"The principle of these decisions appears to be this, that wherever at the time of the contract it is
contemplated that the purchaser should derive a benefit from the further growth of the thing sold
from further vegetation and from the nutriment to be afforded by the land, the contract is to be

11
Supra note 4.
12
I Denio, 550 (1845).
13
[1669] J9785 ER 336.
Page | 12
 considered as for an interest in land but where the process is over, or the parties agree that the
thing sold shall be immediately withdrawn from the land, the land is to be considered as a mere
warehouse of the thing sold, and the contract is for goods. This doctrine has been materially
qualified by later decisions, and it appears to be now settled that, with respect to emblements or
fructus industriales, the corn and other growth of the earth which are produced not spontaneously,
but by labour and industry, a contract for the sale of them while growing, whether they are in a state
of maturity or whether they have still to derive nutriment from the land in order to bring them to that
state, is not a contract for the sale of any interest in land but merely for the sale of goods.”

Another class of cases is where the trees are to stand for an indefinite time, and to be severed solely
at the pleasure of the buyer. Here also some decisions and more dicta declare that the same rule
applies and that the Statute requires in writing.

Buck v. Pickwel14, is one of the most important of this class. There the purchaser of the trees had an
absolutely indefinite time in which to take them off. The vendor sold and conveyed the land before
the trees had been cut, and after twenty years a subsequent grantee of the land, whose deed
contained no reservation of the trees, cut and carried away the remainder, and the first purchaser
sued him in trespass for cutting down his growing trees. Obviously, the case on those facts could be
decided in only one way; for even if the oral sale had been held originally valid, the subsequent
conveyance of the land before the trees had been cut would have revoked the license to enter and cut
them, and the plaintiff would have been liable to the defendant in trespass for stich act; of course,
then, he could hardly expect the defendant would be liable to him for the very same cutting. The
point of revocation, however, does not seem to have been made in the case, and although the
decision itself is correct, even on the ground upon which it was put, yet the same court has declined
to extend it" beyond the very point in judgment.

Scorell v. Boxall15 is very similar. The plaintiff had bought a lot of growing underwood which the
defendants (not the vendor) cut and carried away, and for which the buyer brought trespass, "a
possessory action;" and it was held he had not such a possession as to enable him to maintain that
particular action, though the language of the judges might have been more general.

14
27 Vt. 157 (1854).
15
Y. & J. 396 (1827).
Page | 13
In India the concept of “standing timber” comes under the umbrella of “moveable and immovable
property” under various acts like Transfer of Property Act 1882, The General Clauses Act 1897, The
Registrations Act 1907 etc.

The first of such acts is the Transfer of Property Act, 1882 which defines "immoveable property" as
"Immoveable property" does not include standing timber, growing crops or grass". The word
"moveable property" has not been defined in the Act but only lays down that standing timber,
growing crops or grass shall not be included in the definition of "immoveable property".

In the General Clauses Act, 1897, "immoveable property" has been defined in Section 3(26) as
"immovable property" shall include land, benefits to arise out of land, and things attached to the
earth, or permanently fastened to anything attached to the earth.

In the Registration Act, 1908, "immoveable property" has been defined in Section 2(6) as
"Immoveable property" includes land, buildings, hereditary allowances, rights to ways, lights,
ferries, fisheries, or any other benefit to arise out of land, and things attached to the earth, or
permanently fastened to anything which is attached to the earth, but not standing timber, growing
crops, nor grass".

Sub-clause (9) of the section defines "moveable property" as including standing timber, growing
crops and grass, fruit upon and juice in trees and property of every description, except immoveable
property.

Similarly the Code of Civil Procedure, 1908 defines the word "moveable property" in Section 2(13)
as including growing crops.

All these definitions would indicate that for purposes of various Acts, the definition of the two
words differs in some way or the other, but the common factor is that "immoveable property" does
not include standing timber, growing crops or grass.

Page | 14
 The principle laid down in the case of Marshall v. Green, has been been followed in the statutory
provisions of India. In a separate but concurring judgement in Shantabai v. State of Bombay16, the
supreme court was of the view where the owner of a tree is interested in the further vegetative
growth of the tree, it is a tree (immovable) but if, it is intended to cut the tree reasonably early, the
tree is a standing timber.

In Seeni Chettiar v. Santhanathan,17 parties entered into a contract with reference to such timber
expressly or by implication agreed that the transferee of the timber shall enjoy for a long or short
period, some distinct benefit to arise out of land on which the timber grows. It is a settled principle
of law that transfer of trees standing on land does not amount to transfer of land, on which the trees
stand, such inference is bad in law. The tree passes with land on which it stands along with it. Tree
may be sold as timber or may be sold to remain as fruit bearing.

Thus the principle laid down in the case of Marshall v. Green has widespread application mainly in
England as well as India.

16
[1959] 1 SCR 265.
17
(1897) 20 Mad. 58 (FB).
Page | 15
 4. CONCLUSION AND SUGGESTION

With the passage of time some cases pops up where deciding the ground of the liability becomes a
cumbersome task and much intellect is required for such purpose. The principle laid down by Lord
Coleridge in the case of Marshall v. Green, comes under such category. To decide the liability
according to the principle is not a subject matter of law but the subject matter of circumstances or
fact. To decide whether a tree is a standing timber could be a simple process at some time and might
be difficult at the other. According to the principle it has been understood that fruit-bearing trees
stands as an immovable property when the intention of the parties is that the fruit of the trees would
be enjoyed and an interest in land is created in such situations and not that the trees should be cut
down for use as timber where there is no interest in land created Ordinarily, the terms of the
agreement would tell as to what is sold and what is bought. The fruit bearing tree would lose its
nature when agreement is to cut it and remove i.e., it would become a standing timber in such
situation and would come under the category of movable property. Time may sometime help to
know the nature; timber or fruit bearing but it is not decisive. The contractor of timber may not cut
the tree for months but fate of tree would not change. It will remain timber awaiting to be cut.

Thus the sale of standing timber does not create an interest in the land when the intention of the
parties is to cut the wood of it and make any industrial or alike uses. It only becomes a subject
matter of creating an interest in land when the intention is to enjoy the fruit of the tree and for a long
period of time. Thus the hypothesis undertaken at the inception of the project stands true.

The courts in India has followed the rule or test established by this case of England and accordingly
with the arising need has classified the trees as a standing timber, not limiting only to the
characteristics of the tree but also according to the geographical location and climatic condition of in
which the tree is growing which reveals the concern of the judicial view towards this.

Page | 16
 6. BIBLIOGRAPHY

 (n.d.). Retrieved September 04, 2018, from StudyMode Research Web site:
https://www.studymode.com/course-notes/Transfer-Of-Property-Law-1426316.html

 The Laws of England. (1907). England: Earl of Halsbury.

 Bar, W. (2015). Modern Studies in Property Law. Tenth Biennial Modern Studies in Property
Law Conference (p. 352). Liverpool: Bloomsbury.

 Bennett, E. H. (1895, February 25). Sale of Standing Trees. Harvard Law Review , pp. 367-376.

 Gour, D. S. (2013). Commentaries on The Transfer of Property Act. Delhi: Delhi Law House.

 Morgan, J. M. (1952-1953). Sales- The Effect of the Uniform Sales Act on Contracts for the sale
of the Stanidng Timber. Marquette Law Review, pp. 283-284.

 Mulla, S. D. (2013). The Transfer of Property Act. Lexis Nexis.

Page | 17