Cadle v. McLean

Oole, J. It seems to us there is no foundation for the claim that the contract between the defendant and Thompson & Co. was one which the statute contemplated should be filed and recorded in the office of the district lumber inspector, in order to be valid as against the plaintiffs. The statute (see. 19, ch. 42, Tay. Stats.) undoubtedly refers to the sale and transfer of logs which are cut, having upon them a recorded [636] mark which distinguishes them from other logs. This is very apparent from the preceding section, which provides that the owner of logs may use on his logs any mark not before used by any person in his lumber district, and this mark shall be recorded in the office of the district lumber inspector. Then comes the provision for' recording all mortgages, bills of sale or other instruments in any way “• affecting the ownership of any mark of logs ” in the inspector’s office, provided the instrument specifies “the marlcs placed upon the logs, and where they were cut.” It is evident that, by a kind of figure oí speech, the language “ownership of any mark,” etc., represents the ownership of the marked logs themselves. The statute evidently refers to a transfer of logs which are already cut, having a recorded mark upon them, and has no application to a sale or mortgage of standing timber thereafter to be cut into logs. A bare reading of the statute is deemed sufficient to show the correctness of this construction without further remark. But the learned counsel for the plaintiffs insists that the contract had for its subject matter real estate; that it created between the parties thereto either the relation of vendor and vendee, or of mortgagee and mortgagor; and that, as there was a change of possession in fact of the timber, or of the logs made therefrom, it was necessary that the defendant, in order to preserve his rights under the contract as against the plaintiffs, should have had the instrument. recorded in the office of the register of deeds. The contract was in fact filed in the office of the city clerk of Stevens Point, where Thompson & Co. resided, August 23, 3878. It is true this court has decided that a sale of standing timber was a sale of an interest in land within the statute of frauds (Strasson v. Montgomery, 32 Wis., 52; Warner v. Trow, 36 Wis., 196; Young v. Lego, id., 394; Daniels v. Bailey, 43 Wis., 566); but it does not follow from this that it was essential that defendant should record his contract in the office of register of deeds in order [637] to preserve his rights. "We have not been referred to any statute which requires that such an instrument should be recorded as a conveyance, to secure the rights of parties to it. Suppose the contract had been that Thompson & Co. were to cut the standing timber on the land and manufacture it into lumber on shares, the title of the property to remain in the defendant until the lumber was equally divided. There could be no doubt in that case that the defendant would hold the lumber until a division was made, even as against a purchaser from Thompson & Co. But if we refer to the terms of the contract, we find that the intention of the parties seems to have been to make a conditional sale of the standing timber — the title to remain in the' vendor until the consideration was paid, — or, what is more probable, to make the instrument operate as a mortgage of personal property, which would take effect as such as and when the timber was cut and severed from the freehold. Consequently, whether the instrument be treated as a conditional sale of the standing timber and coming within, the purview of- chapter 113, Laws of 1873, or in the nature of a chattel mortgage within the meaning of section 3, ch. 45, Tay.' Stats., taking effect as the timber was severed from the freehold, seems to be quite immaterial, because the result is the same, the instrument being filed in the proper office. The contract evidently intended that the right of property and the right of possession in the timber cut should remáin in the defendant until payment of the purchase money. "Within the doctrine of Claflin v. Carpenter, 4 Met., 580, and Douglas v. Shumway, 13 Gray, 498, the contract might be sustained as a mortgage of personal property, taking effect when the timber w'as cut. It is, perhaps, the most unfavorable view for the defendant to treat the contract as being in the nature of a mortgage of personal property, as it doubtless was intended it should be. But, in whatever aspect the case is considered, we think the charge of the learned circuit court was correct, that the defendant could hold [638] the lumber as against the plaintiffs, the vendees of Thompson & Oo. It follows from these views that the judgment of the circuit court must be affirmed. By the Court. — Judgment affirmed.