86 Wis. 75 | Wis. | 1893
This cause was here on a former appeal from a judgment for defendants, and such judgment was-reversed for error and a new trial awarded. 81 Wis. 668. Another trial has been had with- the same result. Both judgments went upon the ground that plaintiff was not the owner of the land when the trespass was committedthat is to say, the trial court applied the doctrine of relation, and held that the conveyance to Peltier, although it was not delivered and no consideration was paid therefor until May 5, 1890, took effect when delivered as a conveyance executed March 26th preceding, that being the date of the contract to convey the land, and hence that Peltier alone could maintain the action. Was the doctrine of relation properly applied to this case? The question was not determined on the former appeal, but it is the controlling question on the present appeal.
In Gibson v. Chouteau, 13 Wall. 92, the supreme court of the United States said of a similar ruling: “ The error of the learned court consisted in overlooking the'fact that the doctrine of relation is a fiction of law, adopted by the courts solely for the purpose of justice, and is only applied for the security and protection of persons who stand in some privity with the party that instituted proceedings for the land and acquired the equitable claim or right to the title.” Page 101. We understand this to be a correct statement of the law
It should be further observed that the record does not •disclose the contents and terms of the contract of March 26th between plaintiff and Peltier. It may have been a mere •option, and, if so, no one will contend that it affords any basis for a claim that the doctrine of relation ought to be applied, even as between the parties to it. But we do not rest our judgment on this ground.
By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded with directions to that court to assess the value of the cedar timber at $51, and to render the proper judgment for plaintiff.
