By the Court,
Cole, J.
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 *228Sa^e was a^g^le- ^ts terms, tbe purchaser assignee had not only the right to the immediate entry and possession of the premises, but the right, without restraint, of cutting timber from the lands, manufacturing it into lumber, and selling the same, so long as the instalments and taxes were paid as specified in the bond. Thus far, probably, there would be no disagreement between the counsel as to the construction and effect of the instrument. The appellants were rightfully in possession of the premises; the equitable estate under the contract was in them, and they would be entitled to a conveyance in fee simple when the contract was executed on their part. The cutting of the timber was not a wrongful act, for it was the obvious intention of the parties that the purchaser should have the right to cut off the entire timber upon the lands sold, and manufacture it into lumber. The bond declared that Palfrey should have the possession and use of the premises, without impeachment of waste or claim of damage, so long as he performed the conditions by him to be performed. Regard being had to the nature, character and use of the property, it is most obvious that it was expected and intended that the timber on the lands sold should be cut off and manufactured into lumber. The case is, therefore, not analogous to that of Suffern vs. Townsend, 9 Johns., 35, where the court say that an agreement to sell land does not imply a license to enter and cut trees; and also that a license to enter would not authorize the cutting of timber, because one license does not imply the other; nor like that of Cooper vs. Slower, id., 331, where it is decided that a contract to sell and convey land upon the performance of certain'acts thereafter to be performed, does not, of itself, contain a license to commit waste; but at most only authorizes the parties under it to enter upon the lands as tenants at will and occupy them in a reasonable manner, cutting no. more timber than is requisite for the use and improvement of the same. Substantially the same thing is decided in Moores vs. Wait, 3 Wend., 104. See also Rockwell vs. Saunders, 19 Barbour (S. C.), 473; Halleck vs. Mixer, 16 Cal. R., 574. Neither does the doctrine of Farrant vs. Thompson, 5 B. & Ald., 826; Harlan vs. Harlan, 15 Penn. *229St. R., 507; Morgan vs. Varick, 8 Wend., 587; Elliott vs. Powell, 10 Watts, 453, apply to it. Tbe property in tbis was to be used for manufacturing lumber. It was to be paid for in lumber obtained from tbe lands. And it is idle to say that tbe purchaser under tbe contract bad not tbe right to cut timber to any extent, and sell tbe lumber manufactured from it, because tbe legal title to tbe lands remained in tbe vendor.
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 *230^rom ^ail^S- Suppose tlie contract had required the payments to he made in money, would a default have vested absolute property in the lumber in the respondents? And could he at once treat the possession of the property by the appellant as wrongful, and reclaim the lumber when default was made ? It appears to us not. The appellants are in possession of the mill and lands under a contract of sale, and are making the precise use of the timber growing upon them that the parties contemplated. Why a failure to make a payment when due should have any other effect that in ordinary cases of land contracts, we cannot understand. And we suppose the parties hold substantially the same relations to each other as in the ordinary case of a contract for the sale and conveyance of real estate. A court of equity has jurisdiction in such a case to relieve as well the vendor as the vendees. Button vs. Schroyer, 5 Wis. R., 598. Possibly it might grant an injunction to restrain the appellants from entirely destroying the security, while in default, though the case calls for the expression of no opinion upon that point, and we give none. The simple question before us is, will an action of replevin lie under the circumstances for the lumber mentioned in the complaint? Upon that question our opinion is adverse to the respondent. We do not think he has such an absolute or special property in the lumber as to enable him to maintain the action. See Mather vs. The Ministers of Trinity Church, 3 Serg. & Rawle, 509; Baker vs. Howell, 6 id., 476; Brown vs. Caldwell, 10 id., 114.
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.