A person occupying real estate, with the right to cut and sell wood growing thereon, accounting to the owners for the receipts, after reimbursing himself for expenses out of the proceeds of such sale, has no attachable interest in such wood. Where the defendant, who occupied a farm under a contract with the owners that they would convey said farm to him, upon the payment by him, at any time within four years, of certain stipulated sums, he agreeing to pay over meanwhile to said owners every month, all money received by him in excess of the current monthly expenses, and to render a monthly account of all sales and receipts, cut certain wood, which was afterwards attached by the plaintiff as the property of the defendant, Held, that the defendant had no property in the wood itself, but merely a power to cut and sell the same, coupled with an interest in the proceeds of the sale, for the purposes mentioned.
DURFEE, J.
We think the defendant had no attachable property in the wood attached in this case, when the attachment was made. He was then occupying the farm on which the wood had been cut, and he had, it would seem, a right, according to the practice recognized between him and the owners of the farm, to cut and sell wood therefrom; but by his contract with the owners, he was bound, after reimbursing himself for expenses, out of the proceeds of the sale, to pay over to them the residue, if any, the money so received being passed to his credit in part fulfillment of the contract. We think he had, strictly speaking, no property in the wood itself, but merely a power to cut and sell the same, coupled with an interest in the proceeds of the sale for the purposes mentioned. Except for those purposes, he could not cut and sell without violating the rights of the owners of the farm. There is also evidence in regard to the particular wood attached, that it was cut for a Railroad Company, in pursuance of a contract made with the Company by the said owners, which the defendant had agreed to carry out, and that consequently, the power of the defendant over it, was perhaps even more limited than we have stated; but taking the case in the view which we regard as most favorable to the plaintiff, we think the attachment was invalid.
Judgment for defendant on plea of abatement.