Trumpower v. Marcey

Montgomery, J. Plaintiff brought an action of trespass for the conversion of five cords of wood. It appeared that the plaintiff made a verbal contract with one Briggs for a lease of his farm for a year, yielding a portion of the crops as rental. By the terms of the contract, as claimed by the plaintiff, he obtained the right to cut a tree standing in a meadow, to be used as fuel for an engine in threshing the grain raised upon the farm. The lease expired April 1, 1891. Mr. Briggs died in July, 1890, and the farm was sold at administrator’s sale March 16, 1891. After the decease of Mr. Briggs, in July, 1890, the plaintiff made a new arrangement with the administrator to put in a crop of wheat, which was put in in the fall of 1890, and to be haxwested in the summer of 1891. After the administrator’s sale in March, 1891, the plaintiff cut the tree down, and hauled the wood to the wheat field, to be used for threshing this wheat. Defendant, upon taking [531] possession of the farm, took possession of the wood, and converted it to his own use, claiming that the tree was part of the realty when he purchased, and that the agreement between the plaintiff and Briggs was void under the statute of frauds. Plaintiff was in possession at the time of the purchase by the defendant. It appeared that the defendant was aware of this, and was also aware that he was there as a tenant. The plaintiff was present at the administrator’s sale, and stated what claims he had to the place and the occupancy of it, which did not include any claim' to this tree in question. There was no written conveyance of the tree, or contract relating to it, and, of course, no record in the office of the register of deeds. The defendant became the purchaser for value and in good faith of the property, without notice of any claim of plaintiff to any of the standing trees. Under these circumstances, I think the title to the tree passed to the defendant. I do not think the question involved- is strictly a question of estoppel. It is a question as to whether the property in this tree vested in the defendant by his purchase, and this necessarily depended upon whether he bought without notice of plaintiff’s claim. In the absence of possession, the fact that there was no record notice of any claim to this tree would be sufficient to determine the question of property in favor of defendant. Ancj. while it is true that possession is notice to put a purchaser upon inquiry, yet the force of that notice is broken, if, upon inquiry, the tenant disclaims title. It follows, therefore, that, if the defendant’s theory upon the facts is true, the absolute title to this tree vested in the defendant. Plaintiff had no right to cut it, and, he never having that right, the title to the product of the tree remained in the defendant. [532] Judgment should be reversed, with costs, and a new trial ordered. Morse, C. J., McGrath and Long, JJ., concurred with Montgomery, J.