Hattie C. Lamb, Appellant, v. Henry M. Willis, Respondent.
Second Department,
March 6, 1908.
Trespass — grantor not liable for trespass by purchaser of timber.
A grantor is not liable for the trespass of one to whom, prior to the grant, he had sold the standing timber on the land by simple contract, if he did not direct or instigate the trespass.
Appeal by the plaintiff, Hattie C. Lamb, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Nassau on the 29th day of October, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Nassau Trial Term.
This is an action for damages for trespassing on the plaintiff’s land and cutting down and carrying away growing timber.
The complaint is that “ the defendant, by his agents and servants, entered into and upon the plaintiff’s said premises ” and cut down and carried away the said timber.
The evidence was as follows:
In February, 1905, the defendant sold the standing timber on his woodland to one Christ by a simple contract. In the following May the defendant conveyed the said land to the plaintiff by a full covenant warranty deed, which was at once recorded. Afterwards Christ entered on the land and cut down part of the timber and took it away.
The defendant did not notify Christ that he had sold the land, and the latter did not know of that fact when he entered, etc., nor did the defendant inform the plaintiff nor did she have knowledge when he conveyed to her that he had sold the timber to Christ.
The learned trial Judge granted a non-suit.
John J. Crawford, for the appellant.
Robert B. Knowles, for the respondent.
Gaynor, J.:
The trespass of Christ was not the defendant’s tort; he did not direct or instigate it. If after conveying to the plaintiff the defend*184ant had sold the timber to Christ the ease would be different (Wall v. Osborn, 12 Wend. 40). But as it is the defendant did nothing after he conveyed to the plaintiff and put her in possession to authorize the trespass. The subsequent entry of Christ cannot be made the act of the defendant through his bill of sale to Christ It creates no privity between the plaintiff and the defendant, nor does the defendant’s breach of his contract with Christ. •
The judgment should be affirmed.
Jenks, Hooker, High and Miller, JJ., concurred.
Judgment affirmed, with costs.