We need not consider the question argued in this case, of the validity of the parol contract for the sale of growing timber, by the respondent to the appellant, on which the action is founded. For the purposes of this decision, we shall deal with it as a valid contract.
It was a sale of an interest in the land on which the timber was growing. Strasson v. Montgomery, 32 Wis., 52. That interest was merged in the fee, on the subsequent conveyance of the land by the respondent to the appellant. 2 Black., 177; Smith v. Lewis, 20 Wis., 350. And the merger extinguished the contract. Haggerty v. Fagan, 2 Penn., 533; Creigh v. Berlin, 1 Watts & Serg., 83.
This appears to have been recognized by the learned judge of the court below. For his charge to the jury puts the respondent’s right to recover, not on the parol contract for the sale of the timber, but for unpaid consideration of the conveyance : an essentially different cause of action.
Whether the respondent could have recovered, in a proper proceeding for that purpose, for unpaid purchase money of the
The respondent’s admission of record, in his reply, of the conveyance, ended his right to recover on the parol contract, unless the conveyance should be vacated.
By the Court. —The 'judgment is reversed, and the cause remanded for a new trial.