Lillie v. Dunbar

Taylor, J. It is contended by the learned counsel for the appellant that the evidence conclusively establishes the right of the appellant to the possession of the property at the time the action was commenced, and that as a consequence the court should have directed a verdict in favor of the appellant. It is admitted that the only right the appellant had to the property was derived under the contract made .between Wilcox and the appellant, and it is also admitted that the only right Wilcox had to the timber and lumber was the right Wilcox derived from lillie by virtue of this contract between Lillie and Wilcox. Whatever title, therefore, the appellant had to the property, must be derived from the respondent through Wilcox. It is not seriously contended that in a contest between the respondent and Wilcox as to the possession and ownership of the property after default made by Wilcox in the payment of the agreed purchase money, the title and right of possession would not be in the respondent. The only right [201] Wilcox shows to the property is the right derived under the parol contract with the respondent, by the very terms of which the title to the property was to remain in the respondent until the purchase price was paid; and it is clear that if such contract had been in writing, so that there was no question as to its binding effect in law, the right to the possession of the property would be in the respondent until he received his pay, and that a sale and delivery thereof to a third person before such payment was made, without the consent of the respondent, would be a conversion of the property and entitle the plaintiff to an action of replevin or trover, at his option. This has been so held by this court. Cadle v. McLean, 48 Wis. 630. See, also, Sawyer v. Fisher, 32 Me. 28; Prentiss v. Garland, 67 Me. 345; Homans v. Newton, 4 Fed. Rep. 880. This proposition is denied by the learned counsel for the appellant. . The denial of the proposition is based upon another proposition, viz., that the standing timber on the “Kickbush lands,” the title to which was vested in Lillie by virtue of his written contract with Kickbush, who owned the land, converted the standing and growing timber into personal property, as between Lillie and any other person claiming under him, and that, consequently, his parol sale of the standing timber to Wilcox, and Wilcox’s possession under such parol contract, vested a title in Wilcox, which he could convey to a third person freed from the condition that the title should remain in Lillie until payment made, if such third person had no knowledge of such conditional sale when he made the purchase, by virtue of the provisions of sec. 2317, R. S. We think the conclusion drawn by the learned counsel for the appellant would be the logical conclusion, if it be admitted that the standing timber on the “Kickbush lands” was personal property in the possession of Lillie at the time he made his parol contract for the sale thereof to Wilcox and [202] delivered the possession to him. The statute above quoted was intended to prevent what the legislature evidently thought might be the means of doing an injustice to a purchaser of personal property dealing with one having the actual possession thereof and the apparent ownership, without knowledge of the secret agreement that the title was to remain in the vendor, notwithstanding the possession and apparent ownership was in the vendee. Williams v. Porter, 41 Wis. 422; Kimball v. Post, 44 Wis. 471. The difficulty of the argument of the learned counsel for the appellant is the assumption that the standing timber on the “Kiokbush lands ” was personal property in the hands of Lillie by virtue of his contract with Kiokbush. This precise question was considered by this court in the case of Daniel v. Bailey, 43 Wis. 569; and it was there held that the interest of a party under a contract for the purchase of the standing timber on lands owned by another was an interest in- lands, and that a contract to assign or sell such interest to a third person was void under the statute, unless the same was in writing, as required for the sale of an interest in real estate. To the same effect are Strasson v. Montgomery, 32 Wis. 52; Warner v. Trow, 36 Wis. 196; Young v. Lego, 36 Wis. 394. Although there may be decisions of other courts holding a contrary doctrine under statutes substantially like ours, the case of Daniel v. Bailey, above quoted, was decided after fulL argument, and settles the question for this state, and, we think, settles it rightly. The contract between Lillie and Wilcox was not, therefore, a conditional sale of personal property within the meaning of said sec. 2317, R. S., and is not in any way affected by said section. Notwithstanding the oral contract between Lillie and Wilcox was void under the statute of frauds, being a contract for the sale 6f an interest in real estate, still, Lillie having permitted Wilcox to go on and cut and remove the timber from the land, with the implied [203] assent or license of Lillie, he was not a trespasser in cutting and removing the same, and an absolute title would have vested in him upon the payment of the purchase money according to agreement; and if he had permitted Wilcox to make an absolute sale of the property to a third person, for a valuable consideration, with knowledge and without objection, he would undoubtedly have lost his right to claim the property of such vendee. Marsh v. Bellew, 45 Wis. 36, 54, 55. In the absence of any consent on the part of Lillie that his vendee, Wilcox, should sell the timber he was authorized to cut and remove from the land, there could be no waiver on his part of his right to the timber when cut, and the vendee of Wilcox would have the rights Wilcox had under his contract with Lillie, and no other. The judgment of the circuit court was right, therefore, in limiting the plaintiff’s recovery to the amount of the contract price, with interest, instead of giving him, as damages, the value of lumber or timber cut and removed from the land. The defendant having purchased of Wilcox without reliance upon any known or recorded title in him of the property in question, and being compelled, in order to show any pretense of title in his vendor,Wilcox, to trace such title from the respondent, he cannot claim any greater or other interest in the timber than was vested in Wilcox by virtue of his contract with Lillie, unless, as above stated, he can show that he made his purchase from Wilcox with the knowledge and assent of Lillie. He is no more'entitled to claim an absolute title to the timber in question, under his contract with Wilcox, as against the respondent, than he would have been entitled to claim an absolute title in fee to the land on which the timber stood if Wilcox had gone into possession under a parol agreement to purchase the land of Lillie, and then conveyed the land to the appellant by warranty deed. In such case, there being no title of record in Wilcox, a purchaser from him can only acquire such rights [204] as be actually has in the land.' His possession and claim of ownership gives him no power to convey to a third person any greater interest or better title than he really has. The owner of real estate who makes a contract for the sale thereof in writing, and lets the purchaser into possession, is not required to have the contract of sale recorded in order to protect his interest in the lands so sold. Cadle v. McLean, 48 Wis. 636, 637. The contract between Lillie and Wilcox being a contract for the sale of an interest in lands, it seems to us very clear that it does not come within the provisions of sec. 2317, above quoted, and is not void because not in writing and recorded as required by that section. What was said upon this question in the cases of Cadle v. McLean, and Bunn v. Valley Lumber Co. 51 Wis. 376, and which may appear to be in conflict with this opinion, was not necessary to the decision of either of those cases, and cannot be regarded, therefore, as settling the question in this court differently from what is now decided in this case. By the Court.— The judgment of the circuit court is affirmed.