| Wis. | Feb 3, 1885
It is contended by the learned counsel for the appellant that the evidence conclusively establishes the right of the appellant to the possession of the property at the time the action was commenced, and that as a consequence the court should have directed a verdict in favor of the appellant. It is admitted that the only right the appellant had to the property was derived under the contract made .between Wilcox and the appellant, and it is also admitted that the only right Wilcox had to the timber and lumber was the right Wilcox derived from lillie by virtue of this contract between Lillie and Wilcox. Whatever title, therefore, the appellant had to the property, must be derived from the respondent through Wilcox.
It is not seriously contended that in a contest between the respondent and Wilcox as to the possession and ownership of the property after default made by Wilcox in the payment of the agreed purchase money, the title and right of possession would not be in the respondent. The only right
This proposition is denied by the learned counsel for the appellant. . The denial of the proposition is based upon another proposition, viz., that the standing timber on the “Kickbush lands,” the title to which was vested in Lillie by virtue of his written contract with Kickbush, who owned the land, converted the standing and growing timber into personal property, as between Lillie and any other person claiming under him, and that, consequently, his parol sale of the standing timber to Wilcox, and Wilcox’s possession under such parol contract, vested a title in Wilcox, which he could convey to a third person freed from the condition that the title should remain in Lillie until payment made, if such third person had no knowledge of such conditional sale when he made the purchase, by virtue of the provisions of sec. 2317, R. S.
We think the conclusion drawn by the learned counsel for the appellant would be the logical conclusion, if it be admitted that the standing timber on the “Kickbush lands” was personal property in the possession of Lillie at the time he made his parol contract for the sale thereof to Wilcox and
This precise question was considered by this court in the case of Daniel v. Bailey, 43 Wis. 569; and it was there held that the interest of a party under a contract for the purchase of the standing timber on lands owned by another was an interest in- lands, and that a contract to assign or sell such interest to a third person was void under the statute, unless the same was in writing, as required for the sale of an interest in real estate. To the same effect are Strasson v. Montgomery, 32 Wis. 52" court="Wis." date_filed="1873-01-15" href="https://app.midpage.ai/document/strasson-v-montgomery-6601151?utm_source=webapp" opinion_id="6601151">32 Wis. 52; Warner v. Trow, 36 Wis. 196; Young v. Lego, 36 Wis. 394" court="Wis." date_filed="1874-06-15" href="https://app.midpage.ai/document/young-v-lego-6601639?utm_source=webapp" opinion_id="6601639">36 Wis. 394. Although there may be decisions of other courts holding a contrary doctrine under statutes substantially like ours, the case of Daniel v. Bailey, above quoted, was decided after fulL argument, and settles the question for this state, and, we think, settles it rightly.
The contract between Lillie and Wilcox was not, therefore, a conditional sale of personal property within the meaning of said sec. 2317, R. S., and is not in any way affected by said section. Notwithstanding the oral contract between Lillie and Wilcox was void under the statute of frauds, being a contract for the sale 6f an interest in real estate, still, Lillie having permitted Wilcox to go on and cut and remove the timber from the land, with the implied
The defendant having purchased of Wilcox without reliance upon any known or recorded title in him of the property in question, and being compelled, in order to show any pretense of title in his vendor,Wilcox, to trace such title from the respondent, he cannot claim any greater or other interest in the timber than was vested in Wilcox by virtue of his contract with Lillie, unless, as above stated, he can show that he made his purchase from Wilcox with the knowledge and assent of Lillie. He is no more'entitled to claim an absolute title to the timber in question, under his contract with Wilcox, as against the respondent, than he would have been entitled to claim an absolute title in fee to the land on which the timber stood if Wilcox had gone into possession under a parol agreement to purchase the land of Lillie, and then conveyed the land to the appellant by warranty deed. In such case, there being no title of record in Wilcox, a purchaser from him can only acquire such rights
What was said upon this question in the cases of Cadle v. McLean, and Bunn v. Valley Lumber Co. 51 Wis. 376" court="Wis." date_filed="1881-03-02" href="https://app.midpage.ai/document/bunn-v-valley-lumber-co-6603408?utm_source=webapp" opinion_id="6603408">51 Wis. 376, and which may appear to be in conflict with this opinion, was not necessary to the decision of either of those cases, and cannot be regarded, therefore, as settling the question in this court differently from what is now decided in this case.
By the Court.— The judgment of the circuit court is affirmed.