Rohrer v. Lockery

Dodge, J. We need not consider the extent of the right of the vendor in a land contract who holds the legal title, though only in trust for the security of unpaid purchase money and for the equitable title of the vendee, to vindicate those rights against a mere stranger who wrongfully invades them, as by appropriating timber from the land. Bartz v. Paff, 95 Wis. 95, 69 N. W. 297; Foster v. Lowe, 131 Wis. 54, 60, 110 N. W. 829. It is very clear that when, by consent of the vendor and vendee, who together own the whole title, the timber on such land becomes severed therefrom, it may be dealt with as personal property. Hence, whether the so-called agreement for the cutting was valid or not, when the severance took place the logs became personal property. It was then entirely competent for Levi Bergstrasser, however absolute his title either to the logs or the land from which they were cut, to deliver them to plaintiff on any terms he saw fit. Evidence tends to prove that he did deliver them by his agent and employee, George Bergstrasser. The purpose of such effective delivery may be ascertained from the previous conduct of the parties, whether or not that conduct would have constituted a valid executory contract. Taylor v. Young, 61 Wis. 314, 21 N. W. 408; Taylor v. Thieman, 132 Wis. 38, 111 N. W. 229; Voss v. Voss, 134 Wis. 52, 113 N. W. 1097; King v. Graef, post, p. 548, 117 N. W. 1058. [535] The previeras conversations of the-parties may be considered as indicating the meaning' and purpose of the act of delivery of the logs in question at the sawmill. • That being so, there was evidence tending to show that the delivery was intended to place them in plaintiff’s control for the purpose of having them sawed, selling them, and out of the money reimbursing the expense of cutting, hauling, and sawing, and applying the balance to the debt of Levi Bergstrasser to the plaintiff. If the jury so f ound, the delivery would' vest in plaintiff possession and a special property sufficient to enable him to maintain replevin against a stráiigei*. Frisbee v. Langworthy, 11 Wis. 375; Riess v. Delles, 45 Wis. 662; Dresser v. Lemma, 122 Wis. 387, 391, 100 N. W. 844. We are Satisfied that there was evidence from which the jury might have so found, and that the trial court erred in ordering and entering judgment against plaintiff. By the Gourt. — Judgment reversed, and cause remanded for a new trial.