41 Wis. 167 | Wis. | 1876
The controlling question in the case is, Did the plaintiff have such an interest in the logs in controversy that he can maintain trover therefor? To determine this question, it is necessary to consider the nature of his interest in the land from which the logs were taken. It has often been held that the relation between the parties to a contract for the
The contract of Mrs. Whitney does not, in terms, give the plaintiff the right to the possession of the land; but it does so by necessary implication. It provides for reentry in case the plaintiff makes default in his payments; also for a right of distress upon the premises for arrears of interest;- and contains the other clauses usual in such contracts, that, on default, the plaintiff may be regarded as a tenant holding over without permission of his landlord, and for the recovery of damages for waste. These clauses in the contract manifest unmistakably that Mrs. Whitney intended by it to vest in the plaintiff the right to the possession of the land.
Having such right of possession, he authorized Copper-smith to go upon the land and cut timber, and the latter did so. The act of Coppersmith under such license was the act of the plaintiff, whereby, in contemplation of law, the plaintiff entered into the actual possession of the land. Besides, the case is not barren of proof of other possessory acts on the part of the plaintiff. By his direction, his brother and agent went upon the land when Coppersmith was cutting the timber in controversy, and exercised acts of ownership thereon for the plaintiff. The plaintiff cannot reasonably be required to do more in order to take actual possession. We have no difficulty, therefore, in holding that when the logs were cut by Coppersmith, the equitable estate in the land upon which they were cut, and the possession and right to the possession of the land, were in the plaintiff. It follows, on the authority of Northrup v. Trask, 39 Wis., 515, that the plaintiff was the owner of the land, and of course of any timber cut upon it, subject only to the right of Mrs. Whitney as mortgagee, and that he alone could maintain trover or replevin for timber and logs taken therefrom without his consent. The case last
The learned county judge instructed the jury (among other things) as follows: “ If the jury find from the evidence, that the plaintiff authorized Coppersmith to .go on the land in question and cut timber on it, then your verdict must be for the defendants, although it might appear that Coppersmith cut more timber than he was authorized by the plaintiff to cut.” This was equivalent to a direction to the jury to find for the defendants. It is manifest, from the above views, that the plaintiff may maintain this action for the logs cut by Coppersmith (if any) in excess of his license, and sold hy him to the defendants; and the instruction above quoted is clearly erroneous.
Yarious other exceptions were taken to the rulings of the court on the trial; but it is deemed unnecessary to consider them. What has already been said will sufficiently indicate to the county court what its rulings should be when the cause is again tried.
By the Cowrt. — Judgment reversed, and cause remanded for a new trial.
