Cook v. Van Horne

The following opinion was filed January 28, 1890: Lyon, J. Testimony was introduced by the plaintiffs, which they claim proves that they took actual possession of the logs in controversy before they were seized by the sheriff by virtue of the attachment as the property of Rood Maxwell. The substance of such testimony is given in [524] the foregoing statement of facts. The view we have taken, of the case renders it unnecessary to determine whether there was or was not an effectual taking possession of the logs by the plaintiffs. ¥e shall therefore consider the case on the hypothesis that the plaintiffs never had the actual possession of the logs. 1. The question which first presents itself is, Did the contract of October II, 1887, as between the parties thereto, convey to the plaintiffs and vest in them the title to the logs and the right to the possession thereof? Under the terms of the contract, an affirmative answer to this question is inevitable. Its language is: “ The title to the said logs and the possession to vest in the said Cook & Co. on the ensealing of these presents.” It was claimed in argument that the effect of this broad general language is limited or qualified by the provision therein regarding culls, to wit: “ Culls to belong to seller, or to be taken by the purchaser at three dollars per thousand feet for mill culls in the pile.” We do not think the provision has the effect claimed for it. The plaintiffs purchased the whole of the logs, but reserved the option to require Rood & Maxwell to keep the mill culls in the pile; that is, after the logs were sawed and the culls were piled. This falls far short of a reservation by Rood & Maxwell of the lumber cut from the logs which should grade as “ culls,” or so much of each log as proved to be culls when sawed. It appears that the plaintiffs elected to keep and pay for such cull lumber, but when the election was made we are not advised. As between the parties to the contract, we conclude the title to the logs vested in the plaintiffs on the delivery of the contract. It is too well settled to require citation of authorities to the proposition, that the fact the lumber had to be cut, graded, and measured before the aggregate contract price therefor could be determined is no impediment to a transfer of the title thereto to the plaintiffs when the contract was executed. [525] 2. Having thus determined that the plaintiffs purchased the logs of Rood & Maxwell and took a valid title thereto as against them, the next question is, Hid they thereby obtain a valid title thereto against the .creditors of Rood & Maxwell? They did unless their title is defeated by their failure to have the contract so written as to entitle it to be recorded, and to have it recorded in the lumber inspector’s office of the proper district, pursuant to sec. 1739, R. S.; or unless they have failed to rebut the presumption of fraud arising from the want of a change of possession of the logs, by proof that the purchase thereof by them was made in good faith and without any intent to defraud such creditors. Sec. 2310. Sec. 1739 reads as follows: “All mortgages, liens, bills of sale, or other written instruments, in any way affecting the ownership of any marked logs in any lumber district, which shall specify the marks placed upon said logs and when they were cut, shall be recorded in the office of the lumber inspector in which said marks are recorded; and no such conveyance, lien, mortgage, or transfer shall be valid, except as to the parties thereto, until the same is so recorded, or until the same shall be filed with some deputy lumber inspector, wffio shall immediately forward such instrument to the inspector of the proper district. Such filing and recording of all such instruments and papers shall have the same effect as notice as the recording of deeds and mortgages in the office of the register of deeds.” The logs in controversy were marked logs, but the contract of October 17,1887, does not specify the marks placed upon such logs, nor when they were cut. Hence it was not entitled to record under the statute, and was not recorded. The learned counsel for the defendant maintains, with much ingenuity of argument, that, as against all the world except the vendor, a sale of marked logs, with or without change of possession, or with or without notice thereof, is [526] void. It will serve no useful purpose to follow the argument. ¥e are unable to give the statute the construction contended for. ¥e think, and so hold, that it is competent for parties dealing in marked logs so to frame their contracts in respect thereto as to bring them Avithin sec. 1739, or, at their option, to frame them differently, so they will remain subject to the common laAV and statutory rules which -would govern them had sec. 1139 not been enacted. The parties to the contract under consideration chose to so frame their contract as to take it out of the purview of that section. On the hypothesis that plaintiffs never had actual possession of the logs, the question whether sec. 1739 is applicable to a case where such actual possession has been delivered to and retained by the purchaser is not here involved. It may not be improper to suggest, however, that the court, as at present advised, would hesitate to hold that the section contemplates such a case. The next question is, Have the plaintiffs made the proofs required by sec. 23101 to rebut the legal presumption of fraud arising from the want of a change of the possession of the logs? "We are of the opinion that they have done so. They show that they actually paid for the logs all they were worth. The purchase was openty made, in the usual course of business, and there is not the slightest suggestion that it was made Avith reference to its effect upon any creditor of Rood & Maxwell, or that the plaintiffs knew that firm was insohrent. This is sufficient to rebut such legal presumption of fraud. It follows from the527 above views that the plaintiffs by their purchase of the logs-took a valid title thereto as against the creditors of Eood & Maxwell, including the attaching creditor who is here-represented by the sheriff. The propositions above determined dispose of all the material errors assigned, either by overruling them or rendering them immaterial. It is not necessary to state them in detail. Ve conclude that the undisputed evidence proves conclusively that the plaintiffs are entitled to the judgment they have recovered, and hence that the court properly directed the jury to return a verdict for them. By the Court.— The judgment of the circuit court is affirmed. A motion for a rehearing was denied April 29, 1890.