Inderlied v. Whaley

20 N.Y.S. 183 | N.Y. Sup. Ct. | 1892

Martin, J.

This action was for trespass in removing and converting personal property, consisting of lumber, telegraph poles, railroad ties, and fence posts. Ho other cause of action was set forth in the complaint. The main controversy between the parties was whether the plaintiffs had sufficient interest in the property in question to enable them to maintain the action. By virtue of their contract with Morss, the plaintiffs became the equitable owners of the land described therein, together with all the timber and trees growing thereon, except so far as the same was therein reserved and excepted. Moore v. Burrows, 34 Barb. 173; Adams v. Green, Id. 176; Hathaway v. Payne, 34 N. Y. 103. The exception contained in the contract reserved to Morss, his agents, or Chace, only such timber as was cut and removed within four years. If any was not removed within that time, although cut, it did not fall within the exception, and the equitable title, with the absolute right of possession, passed to the plaintiffs. McIntyre v. Barnard, 1 Sandf. Ch. 52; Boisaubin v. Reed, *41 N. Y. 323; Kellam v. McKinstry, 69 N. Y. 264; Lacustrine Fertilizer Co. v. Lake Guano & F. Co., 82 N. Y. 476.

If it be admitted that Morss had title to the lumber and timber which had been cut and removed to the mill yard and piling ground, it by no means follows that he had the right to remove the portion left upon other parts of the premises of which the plaintiffs had actual possession, and to all of which they had an equitable title. When Morss, or those claiming or acting under him, failed to remove the timber cut within the time provided, as we have seen, it passed under the contract to the plaintiffs, who thereupon acquired an equitable title to it, with a legal right to its possession, which was expressly given by the contract. Before the trial of this action the plaintiffs’ equitable title had ripened into a legal title. When the action was commenced, the plaintiffs, by virtue of their equitable interest and legal right to the possession of it, had, we think, such a special property in, and right of possession of, the lumber not removed, as would enable them to maintain an action for its conversion against any person wrongfully taking the same, and even against a person holding the naked legal title in trust as security for the payment of the unpaid purchase price of the premises, especially where, as in this ease, the whole purchase price had been tendered. 4 Amer. & Eng. Enc. Law, 117; Moak’s Underh. Torts, 589; Edwards v. Frank, 40 Mich. 616; Hoyt v. Van Alstyne, 15 Barb. 568; Stowell v. Otis, 71 N. Y. 38; Wheeler v. Lawson, 103 N. Y. 40, 45, 8 N. E. Rep. 360. We therefore conclude that the court erred in holding that the plaintiffs had not sufficient title to maintain this action.

But it is contended that the plaintiffs were estopped from insisting upon their right to the timber not removed within the time mentioned in the contract, because the plaintiffs forbade the defendant from removing it on January 12, 1886, when the defendant had all of the 13th day of that month in which to remove it. While the defendant’s claim as to the time within which he might remove it may be correct, (Cornell v. Moulton, 3 Denio, 12,) still, if so, it is difficult to discover any ground upon which the defendant’s claim of estoppel can be upheld. As to what occurred between the parties, the defendant testified: “On the 12th day of January, 1886,1 remember being forbidden by the plaintiff to go on and to do anything further. I was on the track there we run lumber out of the mill. The mill was running at the time. Plaintiff wanted to know if I knew our time was out. I told him I did not. I supposed we had the 13th on which the contract was signed and delivered. He said: ‘Ho; your time expires to-day. ’ ‘ Well, ’ 1 said, ‘you will give us the benefit of this evening.’ ‘Ho,’ he said; ‘your time expires with the setting sun to-day. ’ I took out my watch, and looked at the time. It was four o’clock, and as soon as he left I made a memorandum of the day and hour. I done some work that evening; cleaned the snow out of the chute. I did nothing on the 13th, as I could not get help. * * * Had I not been forbidden, I think I could have got all this lumber into the mill yard by the evening of the 13th of January. Think I had or could have got force enough to put them all on.” As to what occurred upon this occasion there is substantially no dispute. From the evidence it is manifest that the plaintiffs were of the opinion that the time in which the defendant could remove the timber, excepted or reserved in the contract, expired at sundown on January 12, 1886, and that they, in substance, so informed the defendant, and refused to extend the time to remove it. In this we can find nothing sufficient to establish an estoppel against the plaintiffs. We are aware of no principle or authority which would sustain us in holding that the plaintiffs’ assertion of their supposed rights at that time, and in the manner stated, estopped them from afterwards claiming the timber which had been cut, and not removed. We do not think the judgment can be sustained upon that ground. We are of the opinion that the learned trial judge fell into an error in holding that the plaintiffs had not sufficient property in the lumber cut, but not removed, to enable them to maintain this action, and in holding that they were estopped from claiming such timber. For these errors we think the judgment should be reversed. Judgment reversed, and a new trial granted, with costs to abide the event. All concur.