Long v. Buchanan

"VVeisel, J. delivered the opinion of this Court. The appeal in this case is by one of three co-defendants in an action of trespass guare clausum fregit, the verdict and judgment being against him alone. The only exception in the case is to the granting by the Court below of the plaintiff’s prayers, and the refusal to grant the second, third and fourth prayers of the defendants. The first and third prayers of the plaintiff, in our judgment, were correctly granted.

The second need not be passed upon, as Simon Long was not affected by the verdict and judgment. The principal defence was the leave and license pleaded in the second plea. The three prayers of the defendants, refused by the Court below, present this to our considera ⁵¹⁶ tion ; and it is contended that the evidence adduced by the defendants and relied upon to support them, not only proved the license, but disclosed the fact that it was coupled with an interest that rendered it irrevocable ; and if so, the prayers contained correct propositions of law, and should have been granted by the Court. It appears by the defendants' proof that the plaintiff had agreed with the defendant, Simon Long, not simply to sell him the corn, but to put it in her crib for him, for measurement, from which he was privileged to take it; that the corn was to be settled for by a credit upon a mortgage he held against her, and a receipt so given, and that a larger price was paid for it than the then current prices in the market; that the corn was placed in the crib and the said Simon invited to go for it or had notice to take it away at his pleasure.

This state of facts, if proved to the satisfaction of the jury, would constitute a license coupled with an interest or grant which rendered it irrevocable. Care must be taken not to confound this case with those of a class, in which the license, though coupled with an interest, is nevertheless of a revocable nature, and would furnish no justification to the licensee for acts done after revocation. These are cases where the interest partakes of the realty, or is of such a nature as to require for its validity a deed, or a compliance with the Statute of Erauds, as an easement, right of way, or other interest in, upon, or out of the land itself. Of this class is the case of Wood vs. Leadbitter, 13 Mees. & W., 838, cited by the counsel on both sides in the argument.

It was very fully considered by the Court of Exchequer, and all the English cases ably reviewed by Baron Alderson in the opinion delivered in it. The note to the case in Hare and Wallace’s Edition, points to the leading American decisions, to which we may add the cases of Hays vs. Richardson, 1 Gill & J., 366, and Addison vs. Hack, 2 Gill, 221 , as bearing upon the question. Erom these we ⁵¹⁷ deduce these principles, that a license, according to C. J. Vaughan, “ properly ["passeth no interest, nor alters or transfers property in any thing, but only makes an action lawful which without it had been unlawful;’’ as a license to hunt in a man’s park or to come into his house. But a license to hunt in a man’s park arid carry away the deer killed to his own use, or to cut down a tree and carry it away the next day, is something more than a mere license ; so far as the taking away of the deer killed or the tree cut down, it is a grant.

A mere license is revocable. But where it is connected with a grant, the party who has given it cannot in general revoke it, so as to defeat the grant to which it was an incident. In all cases of a license by parol where the grant is of a nature capable of being made by parol, the license is irrevocable. But where the license by parol is coupled with a parol grant of something which is incapable of being granted otherwise than by deed or by compliance with a statutory, requirement, there the license is a mere license, because the grant annexed to it wants legal validity ; and like all mere licenses, it is revocable.

These distinctions are clearly illustrated in the following extract from the opinion referred to. “Thus, a license by A. to hunt in his park, whether given by deed or by parol, is revocable ; it merely renders the act of