Mr. Chief Justice Mercer
delivered the opinion of the Court,
This was an action of trespass to recover damages for the cutting of timber by the defendant on a tract of unseated [323]*323land, which the plaintiff by agreement in writing purchased of Dr. Stutzman on the 16th May, 1883. On the trial it was agreed that the defendant had cut timber on the land to the value of $100, between the day of the written agreement and the commencement of this suit, and if. the plaintiff was entitled to a verdict it should be for one hundred dollars.
Dr. Stutzman held the undoubted legal title to the land, when by agreement under seal he sold the same to the plaintiff, in consideration of $1,000, and taxes for the current year, to be paid therefor, five hundred dollars thereof on the 27th of the same month, and the residue with interest on the first of April following, the deed to be made at the earliest convenience.
On tbe 22d May tbe plaintiff paid tbe first five hundred dollars. In March he paid the taxes for the yéars 1882 and 1883, and on the 3d of April following Stutzman executed and delivered to him. a deed for the tract of land.
The defendant set up two grounds of defence. One a parol agreement with Stutzman for the purchase of the land, made prior to his sale to the plaintiff; the other that the plaintiff had no sufficient possession to enable him to maintain the action.
1. When an attempt is made to establish title to land under a parol contract, proof thereof in all its essentials, and in all its equities, should be so plain and clear as to preclude doubt or hesitation as to the contract and the equities arising thereunder: Moore v. Small, 19 Pa. St., 461; Bowers v. Bowers, 95 Id., 477. More especially is this proof necessary when the part performance can readily be compensated in damages: McKowen v. McDonald. 43 Id., 441; Ackerman v. Fisher, 57 Id., 457; Moyer’s Appeal, 105 Id., 432; Lord’s Appeal, Id., 451.
A contract for the sale of growing timber to be taken off by the purchaser without specification as to time, is an interest in land within the meaning of the Statute of Frauds, and the transmission of which must be in writing: Pattison’s Appeal, 61 Id., 294; Bowers v. Bowers, supra.
It is well settled, to take the case of a parol sale of laud out of tbe Statute of Frauds, the vendee must also take actual, open, notorious, exclusive and continuous possession of the premises in pursuance of the contract, and when the whole purchase money has not been paid, he must have made such improvements thereon as cannot reasonably be compensated in damages: Hart v. Carroll, 85 Pa. St., 508; Ballard v. Ward, 89 Id., 358; Ditrick v. Sharrer, 95 Id., 521.
An examination of the evidence in this case shows it to be lacking in all the essential particulars necessary to take the [324]*324case out of the statute. Great doubt exists as to there having been any specific and mutual contract between Stutzman and the defendant for the sale and purchase of the land, or whether there was a mere permission to cut an uncertain quantity of timber tlpereon, and negotiations in regard to some sale of the land at some future time. The evidence of the parties to that alleged contract is in direct conflict. Stutzman testifies positively there was no mutual agreement between him and Zufall for the sale of the land.
However that fact may be, there is no doubt that the defendant paid a small portion only of the sum which he alleges he was to pay for the land, and that he did not take that open, notorious.and exclusive possession thereof necessary to give him title thereto. His work thereon consisted in cutting standing trees, peeling bark, and in removing the timber and bark therefrom. To facilitate this work he removed some rocks to make a passable road. This was the. extent of his improvement on the land. He did not clear or cultivate a rod of land, nor did he erect any building thereon. The evidence is clear and uneontradicted that the lumber which the defendant removed and appropriated to his own use, before the plaintiff purchased, was of greater value than the $200, which he paid Stutzman.
We therefore concur with the learned judge in that portion of his charge to the jury in which he said, “The defendant had no actual possession by residence, enclosure, cultivation or improvements, but he had gone on it from time to time, with employés, laborers and teams, cut timber and peeled bark, which he hauled away and sold. His possession was such, and no other, as a mere intruder might have had, the log-ways were merely such as sufficed for removing the timber and bark that were taken.” He was further correct in saying the defendant had not been injured by non-performance of the contract, as he had realized more from the product of timber and bark sold than the sum of money which he had paid.
A few days after the purchase by the plaintiff, Zufall was notified thereof, and that he would be held as a trespasser in case he cut any more timber on the tract. He disregarded the notice. The Court correctly refused to sustain the first ground of defence.
2. The learned judge, thinking the other ground of defence well taken, gave binding instructions to the jury to find for the defendant.
Having determined that the defendant was a mere intruder, without possession or right of possession, and his license to cut timber having been revoked, the other question is, had the plaintiff a title and possession sufficient to enable him tó [325]*325maintain this action against a trespasser ? Of this we have no doubt. It is well settled law that the owner of wild and uncultivated land is to be deemed in possession so as to maintain trespass, until an adverse possession is clearly made out: Matthew v. Trinity Church, 3 S. & R., 513; Ward v. Taylor, 1 Pa. St., 238; Baker v. King, 18 Id., 138.
The owner of the legal title had sold the land by agreement in writing, to tlie plaintiff. The title of the latter was therefore not affected by the Statute of Frauds. Both parties to this written agreement testified that when it was executed, the agreement was that the plaintiff should have immediate possession of the land. It was a well known and designated tract. The vendor did all that was necessary to give the vendee possession thereof. The latter accepted the same. No adverse possession intervened. In a few days he paid one-half of the purchase monejq before the same became due. Thenceforth Stutzman held the legal title as trustee for the vendee, who became the equitable owner of the estate charged and incumbered only by the purchase money unpaid: Morris v. Rice, 7 Watts, 437; Steven’s Appeal, 8 W. & S., 186; Robb v. Mann, 12 Pa. St., 300 ; Kerchall v. Day, 14 Id., 112; Morgan v. Scott, 26 Id., 51; Siter, James & Co.’s Appeal, Id., 178.
If the land increased in value it was the gain of the vendee. If it decreased by the destruction of timber or improvements thereon, it was his loss: Morgan v. Scott, 26 Id., 51. He had an indubitable right of possession, and in contemplation of law was in the actual possession. This gave him a right to maintain trespass for injury done thereon. It lies not in the mouth of a trespasser to defend by reason of tlie plaintiff owning only an equitable estate : McCurdy v. Potts et al., 2 Dallas, 98. His equitable title was sufficient to maintain the action against a wrong doer.
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Mr. Chief Justice Mercer
delivered the opinion of the Court,
This was an action of trespass to recover damages for the cutting of timber by the defendant on a tract of unseated [323]*323land, which the plaintiff by agreement in writing purchased of Dr. Stutzman on the 16th May, 1883. On the trial it was agreed that the defendant had cut timber on the land to the value of $100, between the day of the written agreement and the commencement of this suit, and if. the plaintiff was entitled to a verdict it should be for one hundred dollars.
Dr. Stutzman held the undoubted legal title to the land, when by agreement under seal he sold the same to the plaintiff, in consideration of $1,000, and taxes for the current year, to be paid therefor, five hundred dollars thereof on the 27th of the same month, and the residue with interest on the first of April following, the deed to be made at the earliest convenience.
On tbe 22d May tbe plaintiff paid tbe first five hundred dollars. In March he paid the taxes for the yéars 1882 and 1883, and on the 3d of April following Stutzman executed and delivered to him. a deed for the tract of land.
The defendant set up two grounds of defence. One a parol agreement with Stutzman for the purchase of the land, made prior to his sale to the plaintiff; the other that the plaintiff had no sufficient possession to enable him to maintain the action.
1. When an attempt is made to establish title to land under a parol contract, proof thereof in all its essentials, and in all its equities, should be so plain and clear as to preclude doubt or hesitation as to the contract and the equities arising thereunder: Moore v. Small, 19 Pa. St., 461; Bowers v. Bowers, 95 Id., 477. More especially is this proof necessary when the part performance can readily be compensated in damages: McKowen v. McDonald. 43 Id., 441; Ackerman v. Fisher, 57 Id., 457; Moyer’s Appeal, 105 Id., 432; Lord’s Appeal, Id., 451.
A contract for the sale of growing timber to be taken off by the purchaser without specification as to time, is an interest in land within the meaning of the Statute of Frauds, and the transmission of which must be in writing: Pattison’s Appeal, 61 Id., 294; Bowers v. Bowers, supra.
It is well settled, to take the case of a parol sale of laud out of tbe Statute of Frauds, the vendee must also take actual, open, notorious, exclusive and continuous possession of the premises in pursuance of the contract, and when the whole purchase money has not been paid, he must have made such improvements thereon as cannot reasonably be compensated in damages: Hart v. Carroll, 85 Pa. St., 508; Ballard v. Ward, 89 Id., 358; Ditrick v. Sharrer, 95 Id., 521.
An examination of the evidence in this case shows it to be lacking in all the essential particulars necessary to take the [324]*324case out of the statute. Great doubt exists as to there having been any specific and mutual contract between Stutzman and the defendant for the sale and purchase of the land, or whether there was a mere permission to cut an uncertain quantity of timber tlpereon, and negotiations in regard to some sale of the land at some future time. The evidence of the parties to that alleged contract is in direct conflict. Stutzman testifies positively there was no mutual agreement between him and Zufall for the sale of the land.
However that fact may be, there is no doubt that the defendant paid a small portion only of the sum which he alleges he was to pay for the land, and that he did not take that open, notorious.and exclusive possession thereof necessary to give him title thereto. His work thereon consisted in cutting standing trees, peeling bark, and in removing the timber and bark therefrom. To facilitate this work he removed some rocks to make a passable road. This was the. extent of his improvement on the land. He did not clear or cultivate a rod of land, nor did he erect any building thereon. The evidence is clear and uneontradicted that the lumber which the defendant removed and appropriated to his own use, before the plaintiff purchased, was of greater value than the $200, which he paid Stutzman.
We therefore concur with the learned judge in that portion of his charge to the jury in which he said, “The defendant had no actual possession by residence, enclosure, cultivation or improvements, but he had gone on it from time to time, with employés, laborers and teams, cut timber and peeled bark, which he hauled away and sold. His possession was such, and no other, as a mere intruder might have had, the log-ways were merely such as sufficed for removing the timber and bark that were taken.” He was further correct in saying the defendant had not been injured by non-performance of the contract, as he had realized more from the product of timber and bark sold than the sum of money which he had paid.
A few days after the purchase by the plaintiff, Zufall was notified thereof, and that he would be held as a trespasser in case he cut any more timber on the tract. He disregarded the notice. The Court correctly refused to sustain the first ground of defence.
2. The learned judge, thinking the other ground of defence well taken, gave binding instructions to the jury to find for the defendant.
Having determined that the defendant was a mere intruder, without possession or right of possession, and his license to cut timber having been revoked, the other question is, had the plaintiff a title and possession sufficient to enable him tó [325]*325maintain this action against a trespasser ? Of this we have no doubt. It is well settled law that the owner of wild and uncultivated land is to be deemed in possession so as to maintain trespass, until an adverse possession is clearly made out: Matthew v. Trinity Church, 3 S. & R., 513; Ward v. Taylor, 1 Pa. St., 238; Baker v. King, 18 Id., 138.
The owner of the legal title had sold the land by agreement in writing, to tlie plaintiff. The title of the latter was therefore not affected by the Statute of Frauds. Both parties to this written agreement testified that when it was executed, the agreement was that the plaintiff should have immediate possession of the land. It was a well known and designated tract. The vendor did all that was necessary to give the vendee possession thereof. The latter accepted the same. No adverse possession intervened. In a few days he paid one-half of the purchase monejq before the same became due. Thenceforth Stutzman held the legal title as trustee for the vendee, who became the equitable owner of the estate charged and incumbered only by the purchase money unpaid: Morris v. Rice, 7 Watts, 437; Steven’s Appeal, 8 W. & S., 186; Robb v. Mann, 12 Pa. St., 300 ; Kerchall v. Day, 14 Id., 112; Morgan v. Scott, 26 Id., 51; Siter, James & Co.’s Appeal, Id., 178.
If the land increased in value it was the gain of the vendee. If it decreased by the destruction of timber or improvements thereon, it was his loss: Morgan v. Scott, 26 Id., 51. He had an indubitable right of possession, and in contemplation of law was in the actual possession. This gave him a right to maintain trespass for injury done thereon. It lies not in the mouth of a trespasser to defend by reason of tlie plaintiff owning only an equitable estate : McCurdy v. Potts et al., 2 Dallas, 98. His equitable title was sufficient to maintain the action against a wrong doer. It was held in Bechtel v. Rhoads, 3 S. & R., 333, that a descriptive warrant, on which a survey and patent were afterwards duly obtained, vested the possession of vacant land in the owner of the. warrant, so that on obtaining bis patent he might maintain trespass for acts done on the land after the date of tlie warrant and before the patent.
A warrant for unimproved land gives to the owner of it a constructive possession of the land, which will enable him to maintain trespass for digging ore thereon, against one who has not an actual adverse possession of the land: Baker v. King, 18 Pa. St., 138.
When the defendant cut the timber in question, the plaintiff by tlie terms of bis contract had an equitable title wliicli soon ripened into a legal estate. It was not necessary for him to use the name of one who held the legal title, but who bad’ no possession, when the trespasses were committed. Tlie [326]*326vendee could assert his right to the timber and to the land in his own name. The amendment asked for and refused was therefore unnecessary. An equitable estate will support an action of partition : Willing v. Brown, 7 S. & R., 467; Longwell v. Bentley, 28 Pa. St., 99. So it will of trespass: Brewer v. Fleming, 51 Pa. St., 102.
It follows that the plaintiff had such a possession as to enable'him to maintain this action, and the learned judge erred in holding otherwise. Therefore, under the agreement
Judgment is reversed, and judgment is hereby entered in favor of the plaintiff for one hundred dollars, with interest thereon from the 6th of October, 1886, and costs.