Wilkie v. Day

Gabdneb, J. The contract between these parties is contained in a written lease, by the terms of which the plaintiff leased to Nathaniel Day and Brothers .a wood and timber lot of ten acres, “ with the privilege ” to the lessees “ of cutting and removing all the wood and timber from the same on or before April 1, 1885.” The lease was executed on January 20, 1888, to go into operation on April 1, 1883. It contained this clause: “ It is agreed and understood by the parties to this instrument that the wood and timber on the above-described premises shall be held by the lessor as guaranty for the payment of the above sum of eighteen hundred dollars, and interest as above named.” By the lease, it appears that the lessees promised to pay the lessor or his order, “ on the first day of May next,” $1800, with interest from -January 20,1883 ; and the justice before whom the case was tried found that, contemporaneously with the execution of the lease, a promissory note for $1800 was given by the lessees to the plaintiff, with interest, payable on May 1, 1883. After the lessees had been in possession under their lease one month, they were required by their contract to pay the entire sum of $1800, with interest, to the lessor. It would seem that it was the original intention of the parties, that, before any material portion of the wood and timber was cut, the $1800 should be paid. The lessees had two years to cut and remove the same, and it is apparent, by the reservation made in the lease, that the plaintiff did not intend that the lessees should have time to cut the wood and timber before they were to pay the money due. This intention is more evident, if, as the plaintiff contends in his brief, it is not practicable to cut off a lot, heavily wooded as this was, without drawing off the trees as fast as cut, [72] and the drawing can only be done in winter on sleds. If this suggestion is correct, the intention of both parties to the lease becomes more evident, that the lessees, before any work was done upon the wood-lot, were to pay the $1800. When the note matured, the makers requested the plaintiff to let the money lie at interest, to which he assented. In the fall or early winter following, the lessees were desirous of commencing work upon the wood-lot, but before cutting off the trees they “ asked the plaintiff if he was willing that they should cut off the wood and timber, and he said, Yes.” The parties contemplated, at the time of the execution of the lease, that the note would be paid at maturity. And the security of the plaintiff must have been originally intended to apply to the wood and timber on the lot, whether cut or uncut, during the month of April, as the note became due on May 1. The word “guaranty” as used in this instrument fairly means security or lien; that the plaintiff should hold the wood and timber as security for the price thereof; that he should have a lien upon the same. This does not make the sale conditional. There is nothing in the contract which shows that the title to the property should remain in the plaintiff until the $1800 was paid. It gives the lessees the privilege of cutting and removing all the wood and timber within a certain time, if payment of the amount agreed upon was made. If this was not paid, then the plaintiff was to hold the same as a security therefor. The sale was complete, with the exception qf delivery. From the acts and conduct of the parties in relation to this contract before any breach thereof was claimed, it is apparent that they understood from it that the possession of the wood and timber was to be held by the plaintiff as security for the payment of the price agreed upon, and that the plaintiff was not to surrender bis possession until the note was paid. This is very different from a conditional sale. Upon a fair construction of the contract, we think that the parties agreed thereby that the wood and timber should be held by the plaintiff as security, in the nature of a pledge, for the payment of the $1800 and interest; but that the instrument does not contemplate that the title to the property should remain in the plaintiff until payment was made. [73] The law is well settled, that, where one voluntarily delivers possession of property which is pledged, or upon which a lien exists, without any restriction or qualification, and without insisting upon payment, it is a release or waiver of any security or lien he may have upon such property, for its price. Farlow v. Ellis, 15 Gray, 229. Scudder v. Bradbury, 106 Mass. 422. Haskins v. Warren, 115 Mass. 514. Upton v. Sturbridge Mills, 111 Mass. 446. If the vendor who has such security upon property chooses to deliver it to the vendee, voluntarily giving up his lien, relinquishing his pledge unconditionally, absolutely, and without insisting upon payment, such delivery makes the sale complete, vests the property in the vendee, and thereafter, in the absence of fraud, the vendor ceases to have any right in the property so delivered, and cannot claim under any pledge or lien which he may have enjoyed originally. The waiver or release of security may be shown by evidence, by acts, conduct, or declarations, showing the purpose of the vendor to yield his right and not further to insist upon it. This intent and purpose of the vendor are questions of fact, to be determined by the tribunal trying the issue. In the case at bar, this question was determined at the trial. The evidence is reported only in part, and we cannot review the finding of the justice who heard the case. The bill raises no question as to the wood and timber remaining upon the lot, and we have not considered to whom the same belongs. After the lessees failed, the plaintiff took possession of all the remaining wood and timber which could be identified, the lessees assenting, and not denying the plaintiff’s right thereto. If the rights of others had not intervened, the parties could legally enter into such an arrangement, and reinvest the plaintiff with possession and title to the property. But it appears that this was done after the lessees had failed, of which fact the plaintiff had knowledge. The presiding justice rightly ruled, that, after the lessees had failed and the plaintiff knew it, they could not by any assent of theirs give the plaintiff a title to the identified wood, lumber, and logs, which would be good as against an assignee in insolvency, if the plaintiff had no such title before. Decree affirmed.