15 Wis. 223 | Wis. | 1862
By the Court,
We cannot understand upon what principle the judgment in this case can be sustained. The action is replevin, to recover a certain quantity of pine lumber alleged to be wrongfully detained by the appellants, and of course cannot be maintained unless at the commencement of the suit the respondent had the general or special property in the lumber, and the right of possession.
It appears from the case that the appellants were in possession of a saw mill and timber lands, upon which pine logs were cut, out of which the lumber in controversy was manufactured, under and by virtue of a title bond given by the respondent to one Palfrey, and which had been assigned to them. The bond recited that the obligor had covenanted and agreed to sell and convey by a good and sufficient deed of conveyance, the lands therein mentioned, upon being paid an amount of lumber in instalments according to the conditions of the bond. Palfrey was to have possession and use of the premises so long as he performed the conditions of the bond in making payments, &c., and when the payments were all made, was entitled to his deed. An instalment of lumber not being paid when due, a demand was made for the amount due on the contract, and this suit brought.
There can be no doubt that the bond and contract for the
But it is suggested on tbe brief of counsel for respondent, that tbis right to enter upon tbe land for tbe purpose of cutting down tbe timber and manufacturing it into lumber, was in tbe nature of a personal license given Palfrey alone, and not assignable; and that if tbe assignee attempted to exercise tbis right, be became a trespasser.
Tbis construction of tbe contract is entirely inadmissible. There is nothing in tbe contract warranting tbe assumption that tbe right to cut tbe timber and manufacture lumber was a personal trust, confined to Palfrey and not enuring to tbe benefit of his assignee. On tbe contrary we suppose tbe appellants stand in precisely tbe same relation to tbe property as did their assignor, and that their rights over it are as full and complete as bis. If be bad tbe unrestricted right to cut tbe timber, manufacture it into lumber, and sell tbe same upon making tbe payments, then they have tbe same right.
Tbe original question then returns, Upon what grounds can tbe respondent maintain an action of replevin for tbe lumber manufactured from logs cut from these lands ? Can be be said to have the absolute or qualified property in tbe lumber, with tbe right of possession? If so, why? We can imagine no reason or principle of law which would have tbe effect to vest tbe absolute property in the lumber in tbe respondent, unless it be tbe failure of tbe appellants to make payment on tbe contract as required by that instrument. And is a default in making a payment upon tbe contract attended with such legal consequences ? It seems to us not. We are unable to perceive why tbe respondent can bring bis action of replevin for tbe particular piles of lumber mentioned in tbe complaint, any more than for any other portion, or, indeed, all tbe lumber manufactured from timber taken
These general observations upon the relations and rights of the parties under the contract, would seem to obviate the necessity for a more particular notice of the rulings of the court below upon the instructions asked and refused, as well as those given. In our opinion, several of those rulings were erroneous.
The judgment of the circuit court is reversed, and a new trial ordered.