A title which is not necessarily bad but which requires a judical action to perfect it, and the remedying of the defect in it is dependent upon parol evidence, is not such a marketable title as a vendee can be compelled to accept. Heller v. Cohen, 154 N. Y. 299 (48 N. E. Rep. 527). Where a contract for the sale of land excepting "all lots or parts of lots, streets or parts of streets, that may have been heretofore sold and conconveyed, or contracted to be sold," requires the vendor to make a good title, and the vendee will not be required to com. plete his purchase where litigation with the grantees of lots falling within the exception is necessary to determine their rights. Koshland v. Spring, 116 Cal. 689 (48 Pac. Rep. 58). The title of a vendor to lands upon which he has previously executed a deed of trust to his wife and daughter for life, and then to their heirs, with the power of sale in the wife and daughter, which trust has been renounced by a release executed by the trustee and the vendor's wife and daughter, being subject to a doubtful claim .in favor of their heirs, is not such good and sufficient title as a vendee can be compelled to accept. Loring v. Whitney, 167 Mass. 550 (46 N. E. Rep. 57). Where one contracting with a purchaser of unpatented land from the owner thereof who was entitled to a patent, agreed to accept a warranty deed and abstract when tendered, if the abstract show a perfect title, except as to the issuing of the patent, it is held that he cannot object to the completion of his contract on account of the nonissuance of the patent, where such a deed and abstract are tendered. Younie v. Walrod, 104 Ia. 475 (73 N. W. Rep. 1021). Title to land is not rendered unmarketable by the existence of a highway across it which has never been legally closed, but which on account of notorious abandonment and the intervention of private rights the public is estopped to reassert further use of it; nor by the existence of a mortgage, the foreclosure of which is barred by the statute of limitations. Baldwin v. Trimble, 85 Md. 396 (37 Atl. Rep. 176; 36 L. R. A. 489). Particular title held to be a good title. Genella v. McMurray, 49 La. 988 (22 So. Rep. 198).

Sec. 931. Proof of title.

Titles to real estate pass by

deed, and when such deed has not been recorded, and cannot

be produced, and no copy of it is in evidence, the testimony of witnesses as to the existence of such deed, and of its contents, must be so clear and convincing as almost to preclude the possibility of a mistake. Day v. Philbrook, 89 Me. 462 (36 Atl. Rep. 991). In an action by one in possession of land, to restrain a city from appropriating it as a street, the burden is on the city to show title to such land. Oglesby v. City of Santa Barbara, 119 Cal. 114 (51 Pac. Rep. 181).

Sec. 932. Slander of title. In the case of Cardon v. Mc Connell 120 N. C. 461 (27 S. E. Rep.,109), the supreme court of North Carolina say: "Slander of title of property may be committed and published orally or by writing, printing or otherwise, and the gist of the action is the special damage sustained; and, unless the plaintiff shows the falsity of the words published, the malicious intent with which they were uttered, and a pecuniary loss or injury to himself, he cannot maintain the action. If the alleged infirmity of the title exists, the action will not lie, however malicious the intent to injure may have been, because no one can be punished in damages for speaking the truth. It is essential in the action that the words be maliciously uttered and with intent to injure; and the burden of proving such malice, express or implied, rests upon the plaintiff. If he can show that the utterances were not made in good faith to assert a real claim of title, or facts and circumstances that warrant such an inference, then malice may be fairly implied. If the defendant should assert title to the property in question, or to some interest therein, which turned out to be unfounded, malice will not be presumed from such a fact, because malice must be shown as a subtantive fact. It is the duty of one believing that he has such a claim or interest to proclaim and assert it when a sale is in contemplation by another, in order that innocent persons may not be deceived or misled to their injury. If one be inquired of, he must speak the truth as he understands it and believes it to be. If he is present at a public sale of property claimed by himself, he must speak for the protection of purchasers, or he will be forever estopped. If at last, upon investigation, the defendant fails to show any title or interest in possession or in remainder, still, if his acts

were done in good faith at the time he spoke, no action will lie. The plaintiff claiming damages must show malice; that there was no probable cause for the defendant's belief; that he could not honestly have entertained such belief. The prevention of a sale by the assertion of a claim by A., although unfounded, is not actionable unless it be knowingly bottomed on fraud. 4 Coke 18; 4 Burrows 2422."

TREES.

EPITOME OF CASES.

Sec. 933. Growing trees as real estate-Contracts and conveyances concerning. Growing trees are considered a part of the real estate and a parol sale thereof is void under the statute of frauds. Walton v. Lowrey, 74 Miss. 484 (21 So. Rep. 243). A fruit tree, bush, or vine kept standing or growing for its fruit or shade, or ornamental tree or bush, is a part of the realty. Missouri K. & T. Ry. Co. v. Lycan, 57 Kan. 635 (47 Pac. Rep. 526). An oral sale of growing trees is but a license to remove them, which is revoked by the death of the licensor before the license is executed. Spacy v. Evans,

Ind. (48 N. E. Rep. 355). In Maryland it is held that, a parol sale of growing trees to be presently cut and removed by the vendee, is not a sale of an interest in land and for that reason within the statute of frauds. Leonard v. Medford, 85 Md. 666 (37 Atl. Rep. 365; 37 L. R. A. 449). When a grantor in a deed conveys hemlock bark and trees upon a certain tract of land, "with the right to enter upon said lot of land at any and all times during the term of ten years, to cut any trees, and make necessary roads to remove said bark and trees, during said term, without being liable for trespass," there is not an absolute sale of all the bark and trees upon the land, but only so much as the vendee may cut and remove within the term mentioned. Webber v. Proctor, 89 Me. 404 (36 Atl. Rep. 631). For construction of particular contract for the sale of standing timber, to be severed and carried away from the land,

which reserved title until the purchase price was paid, see Clark v. B. B. Richards Lum. Co., 68 Minn. 282 (71 N. W. Rep. 389).

Sec. 934. Action for injuring or removing treesMeasure of damages. Trover, or trespass de bonis asportatis, can be maintained by the disseisee, the true owner, after his reentry, for the value of trees cut by the first or second disseisor or their grantees intermediate the disseisin and such reentry. Alliance Trust Co. v. Nettleton Hardware Co., 74 Miss. 584 (21 So. Rep. 396; 60 Am. St. Rep. 531; 36 L. R. A. 155). Citing, Morgan v. Varick, 8 Wend. 587; Truber v. Miller, 48 Conn. 347; Green v. Biddle, 8 Wheat. 75; Heath v. Ross, 12 Johns. 140 (85 Am. Dec. 325, note). Ala. Code 1886, § 3296, construed and applied-who may maintain an action for wrongful cutting of trees-administrator or heirs particular questions of evidence decided. Louisville & N. R. Co. v. Hill, 115 Ala. 334 (22 So. Rep. 163). A partner is not liable for the penalty imposed by Ala. Code 1886, § 3296, against one for " wilfully and knowingly" cutting trees on land not his own, when the act was done without his consent or knowledge by his copartner. Williams v. Hendricks, 115 Ala. 277 (22 So. Rep. 439; 41 L. R. A. 650). Where timber is unlawfully cut and removed in good faith, the measure of damages is the value of the logs when removed, less the cost of removing them. Bond v. Griffin, 74 Miss. 599 (22 So. Rep. 187).

TRESPASS.

EPITOME OF CASES.

Sec. 935. As to what constitutes trespass and who may maintain the action. As to what constitutes forcible trespass, see State v. Childs, 119 N. C. 858 (26 S. E. Rep. 36). One having the legal title to real estate and the right to possession, who takes possession without committing a breach of the peace, is not a trespasser. Burke v. Douglass, 115 Mich. 197 (73 N. W. Rep. 133). Actual possession of land will

sustain trespass as against any one but the true owner entitled to possession or one acting under him. Clay v. City of St. Albans, 43 W. Va. 539 (27 S. E. Rep. 368; 64 Am. St. Rep. 883). To sustain quare clausum fregit, the plaintiff must have constructive possession emenating from legal title, or he must have actual physical possession. High's Heirs v. Pancake, 42 W. Va. 602 (26 S. E. Rep. 536). Trespass to real property cannot be maintained unless the plaintiff has actual or constructive possession of the property where the trespass was committed, and never when the possession of the property was in the defendant. Newcomb v. Love, 112 Mich. 115 (70 N. W. Rep. 443). Under Ky. Stat. 1894, § 2361, an action for trespass upon land may be maintained by the owner although he was not in possession of the land when the injury was committed. Title by adverse possession is sufficient to sustain the action. Coppage v. Griffith, Ky. (40 S. W. Rep. 908). A homestead settler upon public lands of the United States may maintain an action for trespass, after his entry and before his right to a patent becomes absolute. Culbertson Irr. & Water-Power Co. v. Olander, 51 Neb. 539 (71 N. W. Rep. 298). One claiming under an invalid lease who merely enters upon the premises and changes the locks on the buildings has not such possession as will make it a trespass for the authorized agent of the owner of the property to peaceably take possession. Ryan v. Sun Sing Chow Poy, 164 Ill.' 259 (45 N. E. Rep. 497). One whose land does not touch the shore of any lake or stream, cannot maintain trespass against another for cutting grass on wild, uninclosed, adjoin. ing marsh land, which belongs to the United States. Stark v. Miller, 113 Mich. 465 (71 N. W. Rep. 876). A married woman, or she and her husband may maintain an action for trespass to her separate estate, although the legal title thereto is held by a trustee, where she is permitted to have possession and use of the land. Clay v. City of Albans, 43 W. Va. 539 (27 S. E. Rep. 368; 64 Am. St. Rep. 883). La. Rev. Stat. 1870, § 822-definition of trespass and penalty therefor— amended and re-enacted, Laws 1899, p. 448.

Sec. 936. Practice in actions for trespass. In an ordinary action of trespass, it is not necessary to allege a