Bunn v. Valley Lumber Co.

8 N.W. 232, 51 Wis. 376, 1881 Wisc. LEXIS 59

• Court: Wisconsin Supreme Court
• Decided: March 2, 1881
• Status: Published

Opinions

Cole, C. J.

In Cadle v. McLean, 48 Wis., 630, it was decided that section 19, ch. 42, Tay. Stats., refers to a sale and transfer of logs already cut and marked, and had no application to a sale or mortgage of standing timber which was thereafter to be cut into logs. If the construction placed upon the statute in that case was correct — and a majority of the court are still of the opinion that it was,— then it necessarily follows that the filing of the contract under which the plaintiff claims, •in the lumber inspector’s office, did not operate to affect an ini nocent purchaser of the logs from Snow with notice of his .rights. But if the contract had related to logs which were already cut, then it would come under the above provision, and the filing thereof in the lumber inspector’s office would protect the plaintiff’s lien, even as against a subsequent purchaser from Snow. McCutchin v. Platt, 22 Wis., 561. In Cadle v. McLean, whether- the contract was regarded as a conditional sale, or in the nature of a chattel mortgage taking effect as the timber was cut, it was filed in the proper office. Therefore, in the absence of actual notice to the purchaser from Snow of the existence of the Cornell and Snow contract, we are unable to perceive upon what ground plaintiff can claim the benefit of the lien which was reserved' to the vendor in that contract. ISTo actual notice of the existence of the contract on the part of the defendant was shown, or attempted to be shown, upon the trial.

But the learned counsel for the plaintiff insists that the contract in question was a conditional sale, by which the property or ownership of the standing timber and of the logs when cut were to remain in the vendor until the money to become due on the contract was paid. If that construction of the contract were consistent with its language, we do not see that this would aid the plaintiff’s case as .against a purchaser from Snow in good faith; for chapter 113, Laws of Í873, places a contract for the sale of personal property, where the title or right of property remains in the vendor, and the possession in the vendee, until the purchase price is paid or conditions of sale complied with, upon the same footing as chattel mortgages; and such contract must be filed as a chattel mortgage in order to be valid against a purchaser from the vendee. Williams v. Porter, 41 Wis., 422; Kimball v. Post, 44 Wis., 471. We assume, for the purposes of this case, that the purchase must he without notice of any existing equity or right. If this instrument is held to amount to a conditional sale, it was not filed’ as chapter 113 required. What rule would obtain in the absence of that statute, providing the instrument were held to be a conditional sale of the timber, we need not, therefore, stop to consider; for the law just referred to puts such contracts upon the footing of chattel mortgages, to be filed accordingly.* Rut we think the contract could not be said to be a conditional sale of the timber. The vendor in express terms sold, assigned and transferred to the vendee all his interest in and to the pine timber standing upon the land mentioned, which was suitable for merchantable saw logs, “ reserving and having a lien in and to said pine timber and saw logs cut therefrom ” by the vendee, until all the conditions of the sale were fully performed -by the latter. In consideration of the pine timber thus sold and conveyed, the vendee agreed to pay the sums of money as specified in the contract. But the vendee was to have possession of the logs cut, and was to run the same, and make due efforts to sell them. He agreed that all the pine timber or saw logs which by the contract he “ acquires title or possession to,” should be cut and removed from the land during the logging season of 1875 and 1876, providing the logging season of those years was such as would warrant it, with due and reasonable efforts on his part.’ These provisions of the agreement show, as we think, that the parties intended that-the title and ownership of the timber standing upon the land, and of the logs when cut, should pass to and become vested in the vendee — the vendor reserving or having a lien upon the same as security for the payment of the consideration money. This feature of the contract distinguishes it from - the agreements which were considered in Sawyer v. Fisher, 32 Me., 28; Prentiss v. Garland, 67 Me., 345; and Homans v. Newton, 4 Fed. Rep., 880. The agreements in those cases were held in effect to amount only to a license or permit on the part of the owner of land, given 'to another party, to cut and remove timber therefrom, upon the condition that the title to all lumber taken should continue and remain in the owner until the stumpage had been paid. This contract, as we have said, vests the title and ownership of the standing timber, and the logs when eut, in the vendee.

But while it is the manifest intention of the contract to pass the title to the vendee, it is expressly stipulated that the vendor should have a lien upon the' property for the purchase price, and that lien seems to have been transferred to the plaintiff. And while there would seem to be an insuperable objection to giving effect to this lien upon the property as against an innocent purchaser from the vendee for value, there is the strongest reason for enforcing it as against one who purchased with actual notice. In Ballard v. Burgett, 47 Barb., 646, and S. C., 40 N. Y., 314, the plaintiffs sóld ■ France a yoke of oxen, and it was agreed that the oxen were to remain the property of the plaintiffs until they should be paid for by France, the latter in the meantime having possession. France afterwards,, and before he had paid for them, sold the oxen to the defendant, who paid a full price and bought in good faith without notice of the plaintiff’s rights. It was decided that the defendant acquired no title as against the plaintiffs. The case has been approved in subsequent cases in Few York. See Wait’s Sup. to Table of (jases, 21. That was a conditional sale, or perhaps an agreement to sell. In analogy to that case, if the contract before us is not a conditional sale or chattel mortgage, so as to come within our statute, the lien created by the contract, it would seem, might be enforced against a purchaser with notice. Certainly there is no valid reason for saying that’such a purchaser acquired a title superior in equity to the rights of the vendor under his lien.

The question whether the defendant had actual notice of the lien when it purchased the logs of Snow, does not seem to have been raised or litigated on the trial. The plaintiff doubtless relied on the filing of the contract, and of the assignment thereof, in the lumber inspector’s office, as sufficient to charge the defendant with knowledge of the contents of these instruments; -hut for the reasons above given it is clear that this view cannot be sustained. Still it is possible the plaintiff may show on another trial that the defendant had actual notice of the lien when it purchased the property, and, if so, there is no hardship in enforcing it for the unpaid purchase money. The lien was created by the contract, and rests upon equitable principles. The theory and object of this suit, as we understand them from the pleadings, are to enforce that lien. As a very important and material fact in the case was overlooked, or not tried, we have concluded to reverse the judgment and order a new trial. This practice has sometimes been adopted in cases tried by the court, where it was apparent that a cause had not been tried upon its merits, or where some fact upon which the rights of the parties depended had not been fairly litigated.

The judgment of the circuit court must be reversed, and a new trial awarded.