140 Wis. 269 | Wis. | 1909
It is first contended by appellant that the-deed conveyed an absolute title in the timber to defendant, and therefore the subsequent deed to plaintiff conveyed only the remainder of the estate. This contention is .denied by respondent, and he insists that only such timber as was removed before April 15, 1903, passed to defendant by the deed to it. Both parties rely upon the same authorities to sustain their respective positions under this head. The question is an important one and not free from difficulty, if we should regard it unsettled in this state. There is much conflict of authority in other jurisdictions, and much force in the position of appellant to tire effect that the deed to defendant convoyed an absolute title to the timber described in the deed and not such as should be removed within the two years specified. The court, hownver, is forced to the conclusion that, under the settled doctrine in this court, by a conveyance of timber-similar to the one in the deed to defendant only such timber passes by the deed as is removed during the time specified in the deed. Golden v. Glock, 57 Wis. 118, 15 N. W. 12; Hicks v. Smith, 77 Wis. 146, 46 N. W. 133; Williams v. Jones, 131 Wis. 361, 111 N. W. 505; Peshtigo L. Co. v. Ellis, 122 Wis.
In September, 1902, tbe defendant’s grantors, Panlus, Keese, and Connor, conveyed to tbe plaintiff a quarter-section of tbe land covered by tbe deed to defendant on wbicb some of tbe timber mentioned in tbe deed to defendant remained uncut. This deed contained tbe clause set out in tbe statement of facts. After tbe deed to plaintiff bad been signed by Paulus and Eeese it was presented to Connor for signature, and be insisted tbat tbe clause for removal read “April 15, 1904,” instead of “April 15, 1903,” and when signed by Con-nor it read April 15, 1904. One Eeynolds and others associated with bim negotiated tbe salo to plaintiff. When tbe deed was presented for delivery plaintiff objected to the clause respecting removal of tbe timber to April 15, 1904, and Eeynolds thereupon changed it so as to read April 15, 1903. Tbe jury found tbat Connor never consented to this change, although it appears tbat Eeynolds called bim by phone and informed bim of tbe request of plaintiff, and that Connor made no reply, except said “Well,” and bung up tbe receiver. It further appears from tbe evidence that it was understood between defendant and its grantors tbat defendr ant should have further time to rémove tbe timber conveyed than tbat specified in its deed. It does not appear, however, tbat when plaintiff accepted bis deed be bad knowledge of this agreement, but understood be was getting a deed subject only to tbe provisions of tbe deed to defendant, with tbe reservation to enter and remove tbe timber mentioned before April 15, 1903.
Now tbe question arises whether plaintiff was bound by tbe time limit of 1904. He accepted tbe deed as changed'by Eeynolds, making tbe removal period to expire April 15, 1903, and paid tbe consideration on tbe faith of such conveyance. It is vigorously contended by counsel for appellant tbat Eeynolds was not tbe agent of Connor in making
No attempt was made on the part of either party to rescind or repudiate the transaction as closed. ,We think, under the circumstances of the case, the grantors were bound by the change to 1903 as made by Reynolds. It is established that the timber in question was cut by defendant after the time for removal had expired, namely, after April 15, 1903.
Many other questions are argued by counsel, but in the view we taire of the case discussion of them seems unnecessary. It follows from what has been said that the judgment below is right and must be affirmed.
By the Court. — The judgment of the court below is affirmed.